1. Massive productions of documents

A massive production of documents can be spontaneously generated by the parties themselves or can be expected to be generated through document production requests.

In the second scenario, if there is a prospect of a massive production of documents, it usually means that the requests filed by the parties are extremely broad. How should an arbitral tribunal deal with such broad requests?

In each case, one has to start from the basic principles to be applied by arbitral panels to decide on requests for production of documents. The opinion of this author is that these principles should be the same in all cases, regardless of whether the requests are very limited or concern massive amounts of documents.

In reality, the very first question to answer concerns the purpose of document production. There may be differences in this respect on either side of the Atlantic, but in Europe it is generally considered that the fundamental purpose of obtaining documents in the possession of another party is not to permit the arbitrators to reach what is sometimes referred to as "the truth of the case" but to support allegations that the requesting party is making or intends to make in its submissions. [Page358:]

In other words, the purpose is not to gather documents to build a case that you have not yet clearly determined. In fact, the reverse is true. You have a case, you have made allegations, or you intend to make a certain number of new allegations, and you know that the other party probably has documents in its possession that support these allegations. You therefore request the production of these documents. It is in this context that "fishing expeditions" should not be authorized.

In the same context, it is wise to indicate to the parties at the beginning of the arbitration that requests to obtain "all documents relating to" or "all the minutes of the board" or "all the correspondence exchanged between the parties", especially if they cover a long period of time, will generally not be granted.

In my experience, the following principles are generally accepted in continental Europe: 1

The requests for production must identify each document or specific category of documents sought with precision.

The requests must establish the relevance and materiality of each document or specific category of documents sought in such a way that the other party and the arbitral tribunal are able to refer to factual allegations in the submissions filed by the parties to date. This shall not prevent a party from referring to upcoming factual allegations in subsequent memorials, provided such factual allegations are made or at least summarized in the document production request. In other words, the requesting party must make it clear with reasonable particularity what facts or allegations each document or category of documents sought is intended to establish.

The arbitral tribunal will, of course, only order the production of documents or categories of documents if they exist and are within the possession, power, custody or control of the other party.

Finally, the tribunal shall also take into consideration the legitimate interests of the other party, including unreasonable burden. The burden on the requesting party is not in itself a sufficient reason to disallow a request for production of documents. It should be weighed against the potential use of the documents. In other words, the efforts required of the producing party in assembling the necessary documents should be proportionate to the evidentiary value of the documents. [Page359:]

In a nutshell, in deciding on requests for production of documents, whether limited or broad, the arbitral tribunal should always be guided by the generally accepted principle of proportionality, which means balancing the costs and burden of the production exercise, including the costs of reviewing the documents produced, against the likely benefit to the parties and the tribunal in terms of materiality to the outcome of the arbitration and the sum in dispute. The assessment of proportionality in individual cases can only be a matter of the exercise of the tribunal's discretion.

If these principles are applied, there will rarely be massive productions of documents as a consequence of document production requests. Massive productions of documents will generally be the corollary of very broad requests that do not comply with the principles outlined above.

One way to force the parties to narrow their requests is to ask them to present them in the form of a Redfern schedule, in other words, in a tabular form with the request in the first column, the justification of the request in the second column, the objections of the other party in the third column and a blank space for the decision of the arbitral tribunal in the fourth column.

That being said, even requests that are compliant with the principles of precision, relevance and proportionality may, in very large cases, end up in the production of massive amounts of documents. How should such requests be handled?

In the first place, it is a matter for the parties to decide. The arbitral tribunal generally does not deal with the management of large amounts of documents. This author suggests the insertion in the first procedural order of a provision according to which the parties may request documents from each other at any time during the proceedings, but correspondence or documents exchanged in the course of this process should not be sent to the arbitral tribunal. In other words, what is requested of the parties is to refrain from sending to the arbitral tribunal the documents that they have exchanged or that they have been ordered to exchange during the procedure until they decide whether or not to make them part of their case. An arbitral tribunal does not have to examine documents that are not part of a party's case. It is therefore totally unnecessary to copy these documents and overload the arbitrators' offices with large quantities of boxes that will never be opened. [Page360:]

On the lawyers' side, the management of the documents will usually imply the use of DVDs and specialized software that makes the documents available in a searchable format. In some cases, the parties may anticipate the problems generated by large numbers of documents and ask the arbitral tribunal to have recourse to a sampling method. 2 This applies, for example, in an accounting context, where claims are made for, let us say, a failure to pass on certain costs contained in hundreds of invoices submitted on a daily basis. Disclosure of the whole documentary collection in relation to this issue would be exceedingly onerous. One possible solution in this case is for the arbitrators to consider inviting the requesting party to examine a sample of the transactions. It will require the party in control of the documents to generate a spreadsheet or a list providing details of all the individual transactions that together form the object of the disputed process. A sample of the individual transactions can then be selected on a random basis by the party requesting the documents. There are apparently various software programs available that can be used to generate the sample, thereby minimizing any risk or suggestion that the sample has been cherry-picked or is somehow not representative of the collection as a whole. Once the sample has been selected, the disclosing party can then collate and produce the documentary evidence for the individual steps in the process. 3

Turning now to the next stage of the proceedings, where the parties have determined what documents they will submit to the arbitral tribunal, let us assume that the amount of documents ends up being massive. What was just said in terms of management of the case by counsel is still applicable here, but what should the arbitral tribunal invite the parties to do in order to facilitate the management of the case for everybody concerned?

The arbitral tribunal must give directives to the parties in its procedural orders. It is usual in this context that the tribunal will order that exhibits are to be contained in separate binders, that each exhibit has a divider bearing the exhibit's identification number and that each exhibit will be numbered consecutively throughout the proceedings; that the number of each exhibit containing a document submitted by the claimant shall be preceded by, let us say, the letter "C" and the number of each exhibit containing a document submitted by the respondent by the letter "R"; that each binder will also contain a list of these exhibits setting forth the exhibit number, date and a brief description of each exhibit; and, finally, that the lists of exhibits will be updated with each new submission of documents in the proceedings. [Page361:]

Finally, in the last stage of the procedure-the hearing-the arbitrators will generally request two things from the parties in a further procedural order:

a joint chronological list of all the exhibits previously submitted to the tribunal;

a joint hearing bundle. This hearing bundle will not necessarily replace the existing bundles but will contain only the core documents, that is to say, the main documents that will be used during the hearing. The exhibits in the hearing bundle will also numbered, listed in an inventory and paginated.

A sophisticated approach that can be used during the hearing consists of using an electronic presentation system. Counsel, the arbitrators, the witness and the stenographers will in this scenario have a computer monitor placed in front of them. There is a separate system operator whose job is to call up the relevant document on the screen at a given time. This is unfortunately a very costly solution. There is a less sophisticated alternative according to which the hearing bundle is loaded onto a CD or DVD and is projected onto a screen by counsel for the parties as they need it, usually by means of a barcode reader.

2. Demonstrative exhibits

Demonstrative exhibits are most often PowerPoint presentations in the form of charts or tabulations, projected by the parties at the hearing as visual support for their oral presentations. They are generally very helpful to the arbitral tribunal and their use should be encouraged. However, they sometimes raise procedural difficulties if they include new materials that were not communicated to the other party beforehand.

To avoid this problem, this author suggests the insertion in a procedural order of a provision according to which the use of demonstrative exhibits is allowed at the witness hearing, providing that it contains no new evidence. A hard copy of any such exhibit shall simultaneously be provided by the party (or parties) submitting the exhibit to the other party (or parties) and to each member of the arbitral tribunal. The parties shall exchange copies of proposed demonstrative exhibits a number of days before the hearing. For the arbitrators, the sooner the better; for the parties, the later the better. The compromise is to request communication of the demonstrative exhibits a few days before the hearing, not including a weekend. Accordingly, if a demonstrative exhibit raises difficulties, for example because it includes a new [Page362:] document or new information that was not communicated to the other party beforehand, the arbitral tribunal is able to deal with this incident in advance. In any case, arbitral tribunals are strongly advised to always issue adequate instructions concerning demonstrative exhibits. Otherwise, they might face very substantial procedural difficulties at the beginning of the hearing.

1
In this context, see B. Hanotiau, 'Document Production in International Arbitration: A Tentative Definition of Best Practices', in ICC Bulletin, 2006 Special Supplement, p. 113.

2
On this issue, see N. Fletcher, 'The Use of Technology in the Production of Documents', in Hanotiau, supra n. 2, at pp. 101, 105.

3
Ibid., at p. 106.