Why Use Technology in Arbitration for Document Production & Expert Review

Why Use Technology in Arbitration for Document Production & Expert Review

October 31, 2022

Document production is becoming more common in arbitration today. Reliance on experts and other evidence to build and support a case has been and continues to be inevitable. Time and time again we see spiralling costs because parties live in the hope that a deep dive into the data will not be required and do not plan accordingly. However, foreseen or not, unearthing the facts and leaving no stone unturned in the surrounding factual matrix has a material impact on the outcome of an arbitration. Where expert evidence often provides more weight to a party’s position, ensuring they have access to the right documents is even more important. 
Here are ten reasons why technology is imperative to all aspects of information management in arbitration.

1. Build and bolster SOC/SOD with key documents

Manual search is inefficient, inaccurate, and costly. Leveraging technology ensures you won’t miss old hard-copy documents that could bolster your SOC/SOD. OCR allows you to search hard copies and highlight those that are truly not computer legible, thereby shrinking the pool for true manual review.

2. Support witness statements

Witnesses have focused access to key documents and facts. These can jog a witness’s memory or more importantly, corroborate their testimony with incontrovertible evidence in black and white.

3. Identify and remove privileged documents quickly

Immediately identify email domains more likely to contain privileged communications. The most natural would be the domain name of outside counsel for a particular project or deal. Within that general set, you can search further for specific lawyers’ names, which is particularly useful on the client side where the whole company may not benefit from the protection. In turn, you can also train continuous active learning models to find similar substantive documents that have not been identified but may contain privileged material. This can then be tested again just before production.

4. Find and batch documents that respond to Redfern schedules and document requests

Mirror the requests in a correct search term to find documents that are responsive and review them in order. Leverage the technology and create electronic issue tags to replace the multi-coloured sticky notes/comments on PDFs and mass-code documents for requests based on search terms.

5. Recover your technology costs by ensuring the document production exercise is efficient and proportionate to the claim value 

Certain rules (e.g., DIAC article 36) allow you to recover costs relating to experts and expenses. E-disclosure costs fit squarely into this bucket. Taking the time at the front end to ensure that these are properly scoped, budgeted, and tracked gives clients a much better chance of recovering those costs. In addition, where counsel can show the savings in time and cost as compared with a manual workflow, those costs are easier to secure.

6. Collect data in a forensically sound way with oversight from a third-party forensic expert to add credibility to your process

This process ensures all data, which live in increasingly disparate places, is collected so you don’t miss useful evidence. It also ensures that you have an objective third party to justify and, where necessary, defend that process. Self-collection of data and electronic documents is often a point of contention and leads to costs incurred to defend or redo the work.

7. Reduce review time and meet deadlines with AI in-document review platforms

Technology-assisted review (TAR) workflows have been adopted in arbitration after seeing success in litigation. There have been numerous judgments around the technology proving far timelier and more cost-effective for prioritising/categorising evidence. These methods and strategies are now being used in almost every arbitration we are instructed on.

8. Simplify hearing preparation with review platforms working in sync with hearing platforms

Building the hearing bundle within a review platform is a streamlined and cost-effective way to avoid duplicative and manual work on transitioning from a review to a hearing platform. Done correctly, it allows you the significant benefit of each tool without having to manage that yourself.

9. Support experts and reduce their time and costs

Experts charge for their time, so it’s crucial to reduce that time by providing information and documents in an organised, methodical, and practical way. Supplementing it with chronologies and other data trends can prove invaluable.

10. Integrate key documents into expert reports immediately through review platforms

The facts of the project or matter are more easily understood in far less time than if they were provided as PDFs, Word documents, Excel sheets, etc. 
Experts also have access to the wider pool of data to run targeted searches in relation to their field or role in the matter. Once an expert understands more about the case or project, they can use technology to drill down on key points and identify documents that will build the most accurate report. 
TLS has a track record of supporting law firms and in-house legal teams during arbitration—specifically, during document review and production exercises to ensure that costs are kept low, deadlines are met, and wider expert fees are reduced through efficient workflows. 

Blog Info
By: Michael Deeker, TLS Director