Some Dos And Don'ts Of Document Disclosure/Discovery In International Arbitration

^[1] (IBA Rules), for reasons that will be subsequently explained.

WHY THE IBA RULES?

It has been noted, and rightly so that "it must be realised that the most taxing hurdle for lawyers in international arbitration is to leave outside the hearing room their own procedure coloured spectacles".^[2] Parties belonging to different legal backgrounds and traditions often push for procedures that suit their legal backgrounds. Similarly, the legal training and background (civil, common or Islamic law) of arbitrators acts as a primary consideration for the kind of procedure they adopt. This may cause inconvenience as arbitration is, at its core, a dispute resolution mechanism that is tailored as per the parties' consensus.

To overcome this problem, efforts have been undertaken to harmonize common and civil law procedures. These efforts are partly evidenced in the development of internationally accepted rules and guidelines such as the IBA Rules. These rules provide for internationally neutral procedures which blend elements of common and civil law, thereby providing "cross cultural solutions. …and…the avoidance of the peculiarities of national law".^[3]

The IBA Rules are not binding in ICA without prior agreement between parties to that effect. Nonetheless, they remain instructive. Even in cases where tribunals do not directly adopt the IBA Rules, they use them as "guidelines for" or "principles to inform" their decisions.^[4] It has been found that the IBA Rules are used in 60% of international arbitrations.^[5]

It is evident that the IBA rules enjoy immense popularity and are widely used. The authors of this article therefore, deem it fit to lay down the dos and don'ts of disclosure in ICA, in the context of these Rules.

A BRIEF OVERVIEW OF THE OPERATION OF THE IBA RULES

The procedure established by the IBA Rules requires parties to disclose in advance all the documents they rely on, or intend to rely on, in support of their case. These documents can be appended to the parties' statement of claim or defence or to subsequent pleadings.^[6] Following this, each party is permitted (as per the procedural time-table decided by the tribunal) to request the other party for the disclosure of certain identified, narrow or specific category of documents.^[7]

This is the most important part - tailoring of requests. The requests formulated by the parties must explain, how the documents requested are relevant and material to the case before the tribunal. Besides, parties are also required to state whether the documents requested are in their custody or control, while also explaining as to why they believe that the documents in question are in the control of the counter-party.^[8]

Some sample requests for disclosure of documents that a party to an arbitration may have to deal with are the following –

· Preparatory drafts/ working papers of the Shareholders Deed (or whatever document serves as the governing contract of the arbitration) and correspondence related thereto between Mr. X and Mr. Y from date, ______ to ______;

· Minutes of board meetings held by the directors of company X between date, ______ to _______;

· The retainership agreements/ employment contracts/ letters of appointment of Messrs. A, B, C, D and E with M/s XYZ Pvt. Ltd;

· Trial balance and general ledgers of M/s XYZ Pvt. Ltd. for the following individuals – Messrs. G, H, I, J, K, L for the financial years 2017-2018 and 2018-2019;

· Bank statements of Mr./Ms. _____, from his/her account with XYZ bank from date ______ to ______; etc.

Each and every request will be accompanied by a brief explanation as to why the said request is relevant and material to the outcome of the Arbitration.

After the disclosure requests are made, parties are given a specified period for formulating responses to these requests. While responding to these requests, parties may either agree to disclosing the requested documents or may resist disclosure by setting forth the reasons for doing so. Amongst others, document disclosure can be resisted on grounds of privilege, unreasonable burden on the requisitioned party, vagueness of the request and lack of relevance and/or materiality.^[9]

Parties' requests for disclosure of documents, their replies to each other's requests and the tribunal's decision on those requests are often ordered to be presented in the form of a neat expedient called the Redfern Schedule.^[10] The Redfern Schedule is a collaborative table (populated by either side with their inputs) which has separate columns for requests, responses and finally - the decision of the tribunal on each request. A sample Redfern Schedule of the Claimant's requests is as follows:^[11]

Example of Redfern Schedule (Claimant Request)^[12]

Documents Requested	Relevance and Materiality	Respondent's Objections​	Claimant's Reply​	Tribunal's Decision​
All documents produced by, and correspondence exchanged between, the Respondent and financial advisors in the period before concession was granted.	Claimants are entitled to understand fully the mechanism and the aim of the Respondent's privatization program (may refer to pleadings and evidence).	The Respondent objects to this request as ambiguous and overly broad.	Can narrow to documents made in 2005-2007	The Tribunal accepts Document Request No. 1. The Respondent shall therefore produce these documents by [date].

If either party's disclosure requests are not complied with by the opposite party, "an application ordering disclosure of requested documents can be made to the tribunal".^[13] Tribunals usually encourage parties to comply with each other's requests, they may also instruct parties to alter their requests depending on how broad they are. Finally, the tribunal will give its final decision on the requests, often narrowing or rephrasing requests which are granted.^[14]

Per the standard established by the IBA Rules, parties are required to disclose documents which are, firstly, in their custody, possession, or control and secondly, which are relevant and material to the issues in dispute.^[15]

This is followed by providing the parties with a time period for actual disclosure of documents. With this being the broad basic framework of disclosure, here are a few specific 'Dos' of discovery/disclosure:

THE DOS –

1. Devote time and attention to the disclosure process, it is not a mere procedural formality; remember, cases are won and lost on disclosure of documents.

The first thing to remember while dealing with the disclosure phase in any ICA is that under no circumstances is it to be treated as a mere procedural formality. Arbitrations may be won or lost on disclosure or non-disclosure of documents. How a party frames its requests and responds to those of the opposite side has material bearing on the outcome of the arbitration. Practitioners will testify that it often takes a single damning email, or minutes of one fateful meeting to turn the tide of the most complicated of cases.

The way a request is drafted will go a long way in deciding whether the tribunal will grant or deny the request. Likewise, the way a request is responded to will decide whether the responding party will have to disclose documents which may be inherently detrimental to its case. An adverse inference drawn by the tribunal resulting from non-disclosure of documents may altogether be prevented by carefully drafting responses to requests.

2. Requests must pertain to specific documents or narrow and specific categories of documents –

A tribunal will only ask for the disclosure 'of "specific" documents or "narrow and specific" categories of documents'.^[16] Request for disclosure must, therefore, be as narrow and specific as possible, identifying either a specific document or a specific category of documents. Requests may, for instance be narrowed by referring to a specific date, or author, recipient, subject, etc. of the document requested). Any tribunal is likely to deny vague, expansive and generally phrased disclosure requests.^[17] Fishing expeditions and roving enquiries are, more often than not, shot down.

For example, a request seeking the following—"all documents pertaining to internal discussions of key managerial persons of a company from the year 2010 to 2020" is destined to be struck down by any reasonable tribunal. A better way of getting the requisite documents may be to use a finer scalpel and instead make a more focussed request. For instance, one may seek "minutes of meetings, agenda(s) circulated, resolutions passed w.r.t the X solar power contract by the board of directors from the year 2010 to 2013."

Another example of a vague, unspecific request is the following "all financial data of the company/all trading records over the last 5 years", such a request will fail the test of specificity because terms such as "financial data" or "trading records" are undefined and in the context of a company, can include myriads of documents, which may not be identifiable over a long period.

On the other hand, a request seeking all email correspondence between two individuals from one specific date to another, through specified email accounts, may be granted, subject, of course, to it being relevant and material to the outcome of the case.

It is often mistakenly assumed that the request has to be for a specific document, for instance a contract or a letter, in order to be valid. Though the original iteration of the IBA rules did indeed limit disclosure to single, identified documents but this requirement has been subsequently relaxed and now requests for 'categories of documents' are permissible.

It is to be kept in mind that modern arbitrators are almost always reluctant to order wide disclosure because the same is neither expeditious nor cost efficient and these are the hallmarks of the arbitral process.

3. Requests should only be made for relevant and material documents –

Disclosure requests are granted only when it is established that the requested materials are "relevant to the case and material to its outcome".^[18] For a disclosure request to be permitted, the documents requested must be relevant to the dispute and material to the resolution of said dispute.^[19] The standard of materiality and relevance is thus a two-pronged standard which does not allow parties to choose between materiality and relevance. A well drafted disclosure request will set out why, and how, documents being requisitioned are both, relevant and material to the dispute.

Lawyers are accustomed to satisfying a court as to the relevancy of a particular piece of evidence; relevancy being something that connotes a logical connection that the document/fact has to the case; the fact that it raises certain factual inferences which help the court understand the case better. The test of materiality is different; it imposes an increased burden on the party to show that the document sought are not only relevant but will also positively affect the outcome of the proceedings. What is relevant may not necessarily be material to the case and vice versa. Therefore, relevance and materiality, both, are to be established in order to succeed.

^[20] Relevance and materiality, thus, do not have to be proved to the hilt in order for a disclosure request to succeed.

As an illustration of the above-mentioned requirement, one cannot simply ask for documents from a period which is not per se relevant to the dispute, by simply stating that the documents requested are "relevant and material to the case". The requesting party would have to go a step further, and explain, for instance how document from the said period (such as board resolutions, invoices, minutes of meeting, etc.) have an appreciable impact on laying the foundation of the dispute, or how such documents serve as evidence of the intentions of one of the parties and so on. Further, the party should be prepared to answer the inevitable question "What turns on this?"

4. "Taking a sledgehammer to kill a fly"; the test of Proportionality –

^[21]

An example of a disproportionate request can be one whereby a longstanding director of a company is asked to produce each and every document he has ever signed in his capacity as a director, this is a prima facie disproportionate and burdensome request which will, in all probability, be struck down.

5. Ask only for Documents that are in the Possession, Custody, or Control of the Requesting Party –

For any party requesting disclosure of documents, it is essential to make out, at least a prima facie case that the documents being requisitioned are in the possession, custody or control of the requested party. Conversely, the requesting party is also to confirm that said documents are not within its own possession custody or control.^[22]. The "Possession, Custody or Control test" doesn't extend merely to "documents that are in the files or archives of a party, or its employees, officers, or directors, but also to all documents that are within a party's control."^[23]

Control is not a technical concept, it is a practical one "which should be liberally interpreted and applied."^[24]

On the issue of production of documents in the possession of corporate affiliates, for instance, parent concerns, subsidiaries, etc, there is sufficient precedent of tribunals having ordered parties to produce documents in the possession, custody or control of corporate affiliates, such as group companies. There is usually an assumption that the documents requested will be in the control of a member of that group.^[25]

Even in cases where parties may not be able to produce documents which are held by a third party, a tribunal may still require that the requested party "exercise its best efforts to procure the production of those documents."^[26] In such cases, simply citing third party control over certain document may not be effective.^[27]

For instance, in an allegation pertaining to patent infringement by a company; to say that your client is unable to produce documents of the said company despite being its majority shareholder, merely because the said company is not a party to the arbitration (and, therefore, a third party) may not succeed.

6. The need to preserve documents ("Litigation Holds") –

In various jurisdictions, parties are required to preserve documents and evidence once it is clear that litigation is likely.^[28] This requirement to preserve documents or so-called 'litigation holds' (alternatively referred to as "preservation" or "hold" orders) are important, and ensure that documents in question are safeguarded and preserved to be produced in the discovery process prior to litigation. ^[29]

Even though formal obligations on parties to arbitrations to hold and preserve documents are seldom imposed, there are sanctions for destruction of material and relevant documents. The sanction for such acts usually comes in the form of adverse inferences,^[30] a weak sanction, but a sanction nonetheless. It must, however, be remembered that adverse inferences are sufficient to jeopardise a party's interests before a sceptical tribunal. This is over and above the consequences under relevant criminal laws for destruction of evidence.

The IBA Guidelines on Party Representation have included a guideline which reads as follows— "When the arbitral proceedings involve or are likely to involve Document production, a Party Representative should inform the client of the need to preserve, so far as reasonably possible, Documents."^[31]

As soon as litigation, or arbitration seem likely, parties must ensure, not only the preservation of physical documents, but also that of electronic records. Relevant emails, and the data of relevant computers, stored locally or on the cloud, must be imaged and backed up; additionally, it must be ensured that no routine weeding out of data or relevant inboxes is carried out.

Litigation holds are important, think of a shareholders' dispute, or a dispute between entities engaged in a joint venture, where the parties facing off against one another were once partners in running a common enterprise. This leads to a situation wherein both parties are likely to be aware of the existence (if not the exact content) of certain documents that lie in the counter-party's closet. In such circumstances, any destruction of documents, even unwittingly, may lead to an adverse inference.

7. Be mindful of Privilege –

One of the best defences an attorney has to resist disclosure of documents during the disclosure process is the defence of legal privilege. Once it is established that a document contains information which is legally privileged and therefore, off bounds for a tribunal to order the disclosure of, it's production will not be ordered.

There are, however, obstacles associated with availing this defence. Questions regarding how privilege is to be determined, what laws are to be applied while determining privilege, how conflicting laws on privilege are to be dealt with (this question arises frequently in ICA, wherein parties usually hail from different jurisdictions with diverse legal systems, which may deal with privilege very differently) arise frequently.

Another stumbling block that an arbitrating attorney and the tribunal may have to deal with, is the question of: whether privilege is treated as a part of procedural or substantive law in the legal systems native to the parties to the arbitration. The general rule followed to determine the law applicable to any question in ICA is to ascertain whether it is a matter of substance or procedure. This distinction decides whether the substantive law of the contract between the parties would prevail or the relevant conflict of law rule, or the lex arbitri would supersede it. Privilege may be treated differently in different jurisdictions. Privilege may form a part of procedural law (for instance in civil law jurisdictions) or a part of substantive law (for instance on common law countries).^[32]

In addition to issues arising out of privilege constituting a part of procedural law versus civil law, issues may also arise from the fact that certain communications may be privileged in one jurisdiction but may not be accorded the same protection in another. For instance, communications between an in-house counsel and the client may be treated differently in different jurisdictions. The same conundrum extends to 'without prejudice communications' and 'settlement discussions' as well. The ramifications of these different approaches to privilege can be profound.

These questions and differences, unfortunately, bring a great deal of subjectivity in deciding matters of privilege protection. There is, therefore, no legal straitjacket within which matters of privilege protection may be decided.

"There has historically been limited authority concerning the appropriate treatment of privileges in international arbitration."^[33] On the issue of privilege protection, international arbitral tribunals don't have much to go on. Unfortunately, national arbitration statutes are also silent on the handling of privilege related issues. The UNCITRAL Model Law, the English Arbitration Act, the Swiss Law on Private International law, the U.S. FAA, etc. are all uniformly silent on the subject of privilege. Institutional rules like the ICC, LCIA, UNCITRAL and ICSID Rules also maintain the same silence. Only the ICDR Rules^[34] expressly recognize privilege as a ground for objecting to requests for disclosure.

Articles 3 and 9(2)(b) of the revised 2010 IBA Rules on the Taking of Evidence provide for recognition of privileges, together with the introduction of limited guidance regarding application of privilege rules, in international arbitration.

Therefore, the conundrum relating to handling of privilege has mostly been resolved by referring to generally-applicable rules of privilege in national jurisdictions. Most jurisdictions have well defined rules of evidentiary privilege and parties will try to protect documents in their possession from exposure by relying on these rules. Evidentiary rules relating to privilege might differ across jurisdictions, what is privileged information in one country may not be protected by privilege in another, therefore, there will always be some amount of subjectivity involved in how a tribunal will apply these rules.

To overcome the complex debates surrounding the treatment of privilege, arbitrators usually apply the "closest connection" or "centre of gravity" test in order to determine the law applicable to privilege. A multitude of factors such as the nature of the evidence and the provenance of a document are considered while deciding on the law applicable to privilege. "For example, arbitrators will usually recognise a strong link between communications made as part of a mediation and the jurisdiction where the mediation took place, or between communication between a lawyer and his client and the jurisdiction where he is admitted to practice".^[35]

Sometimes, a tribunal may rule on the issue of privilege by first inspecting the contents of the document/s requested. This may require in camera scrutiny of the relevant documents by either a neutral third-party expert, or by the tribunal itself.^[36]

While formulating requests for document disclosure, counsels must be mindful of the privilege protection that the laws of their jurisdiction provide, just as they must be aware of the privilege norms of the opposite party's jurisdiction. What must also be borne in mind is the origin/source of the document the disclosure of which is being sought, because this might become the final factor in determining whether a tribunal regards a document to be privileged or not.

If a counsel is aware that a document is privileged across the parties' jurisdictions, it must not be requested, unless absolutely necessary. Knowledge of privilege related laws is essential while responding to requests for disclosure.

8. Hire a good e-discovery software or agency –

At times, especially in protracted disputes, documents may have piled up over the years. The sheer quantity of these documents would make it impossible for either party to manually examine each and every one of them to determine whether they are responsive to a given request. It is, therefore, advisable to invest in a good electronic discovery software or agency, which, by using carefully selected key words, phrases, senders, recipients, storage locations, time periods, etc. pulls out documents most closely related to disclosure requests in a fraction of the time it would take a team of lawyers, para legals or law interns to do the same.

Production of electronic records during the disclosure process falls within the realm of 'Electronic discovery' or e-discovery. E-discovery is the electronic process of identifying, collecting and producing electronically stored information (ESI) in response to a discovery/disclosure request in arbitration or litigation. ESI usually encompasses, all relevant and material electronic data.

Unlike evidence stored in physical form, digital/electronic documents are more dynamic. These records usually contain metadata, which records vital information about the document such as time and date stamps, author and recipient related information, and information relating to file format, etc.

It is crucial that the original content of the documents and their metadata be preserved. Any failure to do this may lead to claims of tampering with evidence subsequently in the arbitration.

Once data is identified by the parties to the dispute, potentially relevant material (electronic/digital and hard-copies) are placed under a litigation hold, i.e. they cannot be altered or destroyed.

Data identified as relevant, is then extracted, consolidated, indexed and finally uploaded/downloaded into a database. The material contained in this database is analyzed to remove non-relevant documents, once this analysis is complete, the data is made accessible to a team of reviewers who mark or flag the documents per their relevance to the dispute or specific requests for disclosure. This is the stage at which attorney's and paralegals usually come into the review process. E-discovery softwares, therefore, allow and facilitate the separation of wheat from the chaff among the documents requested.

The inability to find (and consequently produce) documents which the requesting party is certain of the existence of, simply because the requested party couldn't find them in time may lead to drawing of adverse inferences. This must be avoided as far as may be practicable.

9. Other tips.

Even before the discovery/disclosure process in an arbitration is flagged off, a wise counsel will exhort his/her client/s to start gathering documents and electronic records which may be relevant and material to the case, while simultaneously making lists of documents which may be asked for. Documentary excavation must begin well before the disclosure process is initiated. Rushed, last moment consultations with clients which may elicit incomplete recalls and yield incomplete information are never a good idea.

As a lawyer, you must now effectively brainstorm with your clients and their staff to make tentative lists of documents which may be required for disclosure. You are also supposed to constantly follow up on these lists with your client's staff while at all times keeping the higher ups in the pecking order in the loop.

Coming now to the don'ts:

Don'ts

1. Indiscriminate objections to requests for disclosure

While it is important to object wherever a request is unreasonably broad, or burdensome, or for irrelevant, immaterial or privileged documents, objections must not be taken mindlessly or solely for the sake of objecting. Tribunals are not appreciative of whimsical objections. Not only will such objections be shot down, they would also create an adverse inference, portraying the objecting party in bad light. If a request cannot be validly objected to, and if disclosure of the requested documents would not harm (or cause only negligible harm to) the case of the requested party, documents must be disclosed. This is an effective way to assist the tribunal and showcase a party's bona fides. The logic is simple, don't hide what doesn't need hiding.

2. Don't go fishing

It is easy for an arbitrator to deny a request if it is over broad and in the nature of a fishing exercise. It is important to ask only for what is needed and necessary for the case. Never ask for documents hoping to chance upon relevant material. Be mindful of the common objections which may be taken in response to vague and broad requests, as well as ones for commercially sensitive data. It has been rightly observed that, "a fishing expedition in the context of discovery refers to the aimless trawling of an unlimited sea. Where on the other hand, the party concerned knows a specific and identifiable spot into which he wishes to drop a line (or two) …"^[37] that would not qualify as a fishing expedition. Expansive requests are frowned upon by modern arbitrators and any failed attempt at a protracted discovery/disclosure may have severe cost implications.

By way of example, asking for documents pertaining to an entity or object in dispute for a prolonged period, without specifying how the documents are relevant or material to the case, seems like nothing more than a lazy attempt by the requesting party to be served material useful to its case by the counter-party. This qualifies as a fishing expedition.

3. Never ask for documents without knowing what to expect

This is similar to the valuable advice often given by expert cross examiners "never ask a question the answer to which you do not know yourself!" In disputes which have a long history, both sides may have forgotten about the existence of certain documents. Forcing the opposing party to dig up (and place on record) something - which may haunt you subsequently— is not the best approach.

It is, therefore, important for the requesting party to know and decide whether it really needs a document from the other party to succeed, or whether it can do without it. Asking for documents in disclosure simply for the sake of asking is not without its risks. One party's careless request should not become the other party's "Eureka!" moment.

4. Don't treat disclosure as a mere formality

It is fallacious to treat disclosure like a mere procedural formality. More often than not, the sanction for non-disclosure of documents, the disclosure of which has been ordered by a tribunal, or of carelessly worded, vague requests will be an adverse inference. This may not sound like much but is enough to swing entire cases for or against a party.

Always remember, an innovative legal argument may swing entirely on the presence or absence of a document from the record of proceedings. For example, while arguing estoppel, it is necessary to prove that a party was aware or unaware of a particular fact, in these situations, documents recording the said fact may prove crucial in advancing such an argument. Therefore, what happens during the disclosure phase of an arbitration impacts to a great extent, the result of the arbitration.

An alternative example can be a case where the Claimant is trying to argue specific performance of an obligation contained in a term sheet. While a term sheet isn't by itself enforceable, it can take on the characteristics of an enforceable contract by the conduct of the parties in certain cases. In such a case, failing to place on record crucial email correspondence between the parties or certain board resolutions or any other document which proves the existence of all the essential elements of a contract is an irredeemable blunder and may cause defeat the claim for specific performance.

5. Don't take unilateral decisions

Every request made, and every request answered, must be run by and approved by the client/s at the drafting stage. While a counsel may advise his or her client/s based on his or her legal expertise, the final decision-making authority must rest with the client. A counsel cannot promise something that his/her client is not ready to produce.

While a legally trained mind may see no problem in producing certain document and may, in fact, believe such disclosure to be relevant to the case, a commercially trained mind may differ. Therefore, it is necessary to get each and every request/response, approved by the client before it is finally sent to the Tribunal. A classic example of this may be documents relating to the production process followed by a company, or correspondence between a company and its suppliers or vendors, or an enterprise's marketing, distribution or advertising strategy.

A clear example of the above can be the following— committing to produce all communication between a fast food retail chain and its suppliers, which may amount to giving away its trade secrets such as the ingredients used in signature dishes, etc. Needless to say, this is something that an attorney cannot do without the express approval of his/her client.

6. Don't tamper with evidence

This is a cardinal, non-derogable cannon of ethical lawyering and cannot be emphasised enough. Legal sanction aside, the risk involved in doing something like this is neither worth your reputation as a lawyer, nor that of client's. Moreover, the metadata of electronic documents records information like who the author of the document is and when it was last changed, while one may attempt to delete or alter this metadata, it becomes increasingly difficult to do this while dealing with large volumes of data. Remember, any kind of concealment or tampering can have substantial adverse impact on your reputation and your client's case.