Document Production and Depositions Cultural Resolution TOM ALAN CUNNINGHAM PLLC Process of gathering evidence most debated topics. One of the primary factors leading to criticism of arbitration. ©Tom Alan Cunningham PLLC

©Tom Alan Cunningham PLLC Documents Story. Common law v. civil law traditions. Rule making achieved consensus. Best epitomized in IBA Rules for the taking off evidence in international arbitration published in 2010. ©Tom Alan Cunningham PLLC

“… each party intends to rely.” Documents: “… each party intends to rely.” ©Tom Alan Cunningham PLLC

©Tom Alan Cunningham PLLC IBA Rules, Art. 3(1)* “Within the time ordered by the Arbitral Tribunal, each Party shall submit to the Arbitral Tribunal and to the other Parties all Documents available to it on which it relies, including public Documents and those in the public domain, except for any Documents that have already been submitted by another Party.” * IBA Rules on the Taking of Evidence in International Arbitration (2010). ©Tom Alan Cunningham PLLC

©Tom Alan Cunningham PLLC ICDR International Arbitration Rules, Art. 21(3) (2014). (“The parties shall exchange all documents upon which each intends to rely on a schedule set by the tribunal.”). CPR Protocol*, Modes of Disclosure, Schedule 1, Mode A. (“No disclosure of documents other than the disclosure prior to the hearing of documents that each side will present in support of its case.”). ICC Rules of Arbitration, Appendix IV (2012). (Case Management Techniques) (“avoiding requests for document production when appropriate in order to control time and cost”). *CPR Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration (2009). ©Tom Alan Cunningham PLLC

“… relevant and material to the outcome…” Documents: “… relevant and material to the outcome…” ©Tom Alan Cunningham PLLC

©Tom Alan Cunningham PLLC IBA Rules, Art. 3(7) “The Arbitral Tribunal may order the Party to whom such Request is addressed to produce any requested Document in its possession, custody or control as to which the Arbitral Tribunal determines that (i) the issues that the requesting Party wishes to prove are relevant to the case and material to its outcome…” ©Tom Alan Cunningham PLLC

©Tom Alan Cunningham PLLC ICDR International Arbitration Rules Art. 21(4) (2014)(“The tribunal may, upon application, require a party to make available to another party documents … that are reasonably believed to exist and to be relevant and material to the outcome of the case.”). ICC Rules of Arbitration, Appendix IV (2012) (Case Management Techniques)(in those cases where requests for document production are considered appropriate, limiting such requests to documents or categories of documents that are relevant and material to the outcome of the case ….). ©Tom Alan Cunningham PLLC

©Tom Alan Cunningham PLLC Relevance v. Materiality . “In common law systems the concept of materiality is merged into the concept of relevance and retains no independent viability. However, in international arbitration practice the materiality criterion is considered mostly in relation to its connection to the outcome of the case, whereas relevance concerns the general relationship between evidence and the case.”* *Konstantin Pilkov, Evidence in International Arbitration: Criteria for Admission and Evaluation, Arbitration, Vol. 80, Issue 2 (2014) at p. 149. See also Glamis Gold Ltd. v. United States, NAFTA/UNCITRAL 20 July 2005, available at https://www.state.gov/documents/organization/54365.pdf. Relevance = Bears on the matter at issue. Materiality = Does it influence the outcome. ©Tom Alan Cunningham PLLC

©Tom Alan Cunningham PLLC Electronic Documents “[R]equests for the production of electronic documents, like requests for the production of paper documents—to the extent they are deemed necessary and appropriate in any given arbitration—should remain limited, tailored to the specific circumstances of the case and subject to the general document production principles of specificity, relevance, materiality and proportionality.”* *Report of the ICC Commission on Arbitration and ADR Task Force on the Production of Electronic Documents in International Arbitration (2012). ©Tom Alan Cunningham PLLC

“… specific description of documents…” ©Tom Alan Cunningham PLLC

©Tom Alan Cunningham PLLC IBA Rules, Art. 3(3)(a) A Request to Produce shall contain: “(i) a description of each requested Document sufficient to identify it, or (ii) a description in sufficient detail (including subject matter) of a narrow and specific requested category of Documents that are reasonably believed to exist; in the case of Documents maintained in electronic form, the requesting Party may, or the Arbitral Tribunal may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such Documents in an efficient and economical manner…” ©Tom Alan Cunningham PLLC

©Tom Alan Cunningham PLLC IBA Rules, Art. 3(3) A Request to Produce shall contain … “(b) a statement as to how the Documents requested are relevant to the case and material to its outcome…” “(c) (i) a statement that the Documents requested are not in the possession, custody or control of the requesting Party or a statement of the reasons why it would be unreasonably burdensome for the requesting Party to produce such Documents, and (ii) a statement of the reasons why the requesting Party assumes the Documents requested are in the possession, custody or control of another Party.” ©Tom Alan Cunningham PLLC

Addressing Document Disputes The “Redfern Schedule” ©Tom Alan Cunningham PLLC

©Tom Alan Cunningham PLLC Document(s) Relevance / Materiality Response Decision *See Nigel Blackaby, et al., Redfern and Hunter on International Arbitration, ¶1.238 (6th ed. 2015). ©Tom Alan Cunningham PLLC

©Tom Alan Cunningham PLLC Enforcement ©Tom Alan Cunningham PLLC

UK Arbitration Act, Art. 41(7)(1996) If a party fails to comply with [a] peremptory order … the tribunal may do any of the following— direct that the party in default shall not be entitled to rely upon any allegation or material which was the subject matter of the order; draw such adverse inferences from the act of non-compliance as the circumstances justify; proceed to an award on the basis of such materials as have been properly provided to it; make such order as it thinks fit as to the payment of costs of the arbitration incurred in consequence of the non-compliance. ©Tom Alan Cunningham PLLC

©Tom Alan Cunningham PLLC IBA Rules, Art. 9(5) ([T]he Arbitral Tribunal may infer that such document would be adverse to the interests of that Party. IBA Rules, Art. 9(7) ([T]he Arbitral Tribunal may … take such failure into account in its assignment of the costs of the arbitration, including costs arising out of or in connection with the taking of evidence. ©Tom Alan Cunningham PLLC

©Tom Alan Cunningham PLLC ICDR International Arbitration Rules, Art. 21(9) ([T]he tribunal may draw adverse inferences and may take such failure into account in allocating costs. UNCITRAL Arbitration Rules (2013), Art. 30(3) (If a party, duly invited by the arbitral tribunal to produce documents, exhibits or other evidence, fails to do so within the established period of time, without showing sufficient cause for such failure, the arbitral tribunal may make the award on the evidence before it. ©Tom Alan Cunningham PLLC

©Tom Alan Cunningham PLLC Depositions ©Tom Alan Cunningham PLLC

ICDR International Arbitration Rules Art. 21(10) (2014) Depositions, interrogatories, and requests to admit as developed for use in U.S. court procedures generally are not appropriate procedures for obtaining information in an arbitration under these Rules. ©Tom Alan Cunningham PLLC

Depositions vs. Witness Statements Witness statements are more focused and efficient; Deposition procedures are more involved and wasteful – Redundant use at the hearing; Depositions are more difficult to supervise; Depositions increase time and cost; ©Tom Alan Cunningham PLLC

When Depositions May be Useful* When the agreement prescribes them; Representative depositions, e.g. FRCP 30(b)(6). Witness unavailable for the hearing - Arbitration hearing schedules more flexible. Expert depositions. *See, e.g., Nathan O’Malley, Are Depositions Incompatible with International Arbitration, Kluwer Arbitration Blog (2012) (available at http://kluwerarbitrationblog.com/2012/11/19/are-depositions-incompatible-with-international-arbitration/) ©Tom Alan Cunningham PLLC

©Tom Alan Cunningham PLLC Deposition Controls* Unavailability required; Time limitation; Presenting party goes first; No objections except for privilege or confidentiality; Full transcript included in the arbitration record; Party requesting the deposition waives the right to have the witness appear at the hearing. ©Tom Alan Cunningham PLLC

Its All About Proper Management ©Tom Alan Cunningham PLLC

ICDR International Arbitration Rules, Art. 21(1) The arbitral tribunal shall manage the exchange of information between the parties with a view to maintaining efficiency and economy. The tribunal and the parties should endeavor to avoid unnecessary delay and expense while at the same time avoiding surprise, assuring equality of treatment, and safeguarding each party’s opportunity to present its claims and defenses fairly. ©Tom Alan Cunningham PLLC

Tom Alan Cunningham PLLC Conclusion Tom Alan Cunningham PLLC

What Parties Should Do: Start early; Prepare completely ahead of time; Draft filings with discovery needs (if any) in mind - Be ready for the case management conference; Know your audience; Select the right arbitrator. ©Tom Alan Cunningham PLLC