Examples of Wording that Might be Used for Directions for the Use of IT

Part of the beauty of international arbitration is that it is not a "one-size-fit-all" process. Rather, the tribunal will enter procedural orders and give directions that are tailored to meet the needs of the particular case. With this is mind, the Task Force thought it would be helpful to provide examples of language that arbitrators and parties might consider for use in procedural orders or other directions from the tribunal concerning the use of IT.

These examples have been kindly provided by the Task Force and members of the ICC Commission on Arbitration and ADR. Although the examples are intended to illustrate the points made in the body of the Task Force's report and otherwise may be helpful to arbitrators and parties, they are not intended to be mandatory (or even recommended) for use in any given case. The example wording should be considered as a source of inspiration for the clauses to be drafted independently in a given case with its unique requirements.

The tribunal, as well as the parties and their counsel, will have specific preferences and needs. Thus, if one or more examples fit the needs of a particular case, they can be incorporated. If not, they should not be used. If a tribunal, parties or counsel believe that the examples can be improved, they should feel free to do so.

Given that the sample clauses are intended as examples, the language in one example may be superfluous to language in other examples. Thus, although language in one example clause can be used in conjunction with language in another example clause, redundancies should be eliminated as necessary. Also, references to parties and tribunal members may need to be adjusted depending on their number.

A. SAMPLE WORDING FOR PRE-DISPUTE AGREEMENT ON IT USE

The Parties, by an express provision in the agreement, adopt the following procedures regarding the use of information technology ("IT"). The interpretation of such provision is subject to the law of the arbitration agreement:

The Parties recognise that, in principle, the use of IT in a possible arbitration between them may result in a more cost-effective and less time-consuming proceeding. Therefore, they shall favourably consider the use of IT for this purpose and shall endeavour to discuss in good faith how to frame it in such a way as may be deemed most suitable at the time of arbitration, taking into consideration, as may be appropriate, relevant developments that have occurred in IT, as well as any observations and suggestions that the Arbitral Tribunal may express, without prejudice to the right of the Arbitral Tribunal to issue directions for case management.

Comment: See Section 1.1 of the Report.

B. SAMPLE WORDING FOR TERMS OF REFERENCE

1. The Parties recognise that the use of information technology ("IT") may result in a more cost-effective and less time-consuming proceeding. Thus, they favourably consider this use, and undertake to negotiate in good faith between them regarding how such technologies may best be utilised in the present arbitration and to take into account any observations and suggestions that the Tribunal may express, without prejudice to the right of the Tribunal to issue directions for case management.

2. General Use of IT

(a) The Tribunal may issue directions regarding the use of appropriate IT:

(i) at any presentation to or conference with all Parties; or

(ii) at any hearing before the Tribunal unless a Party reasonably objects.

(b)The Party using IT shall deploy commercially reasonable efforts to ensure that the IT functions properly at all relevant times and does not impair the progress of the arbitration.

(c) If a Party does not comply with the preceding requirements, the Tribunal retains full discretion to take appropriate action and issue appropriate directions, including adverse cost findings. In this regard, the Tribunal shall place particular weight on whether that Party acted in good faith.

3. Communications

(a) [General provisions regarding notifications and communications can be inserted here]

(b) Specific directions on the means of communication for the filing of written submissions and the observance of time limits in connection with such filings are set out in Procedural Order No. 1.

(c) All other notifications and communications by the Parties and by the Tribunal (except for awards) shall be made by email or by any other means of telecommunication that provides a record of the sending thereof.

Comments: As described in the main body of the report, in general detailed wording regarding IT use should be included, if at all, in Terms of Reference only in cases where there is a high degree of cooperation among the parties. In most cases, it is preferable to include directions for IT use in a (first) procedural order. The arbitral tribunal should consult with the parties and (to the extent possible) secure their cooperation in implementing the directions before the directions are issued in the order.

C. SAMPLE WORDING FOR FIRST PROCEDURAL ORDERS

1. Communications between the parties and the tribunal

Example 1 - Communications

Except where specified otherwise below, the Parties agree, and the Tribunal directs, that all submissions and other communications shall be submitted via email directly to the Arbitral Tribunal, provided that each Party's counsel and the ICC Secretariat are also copied. All notifications and communications shall be considered validly made provided that they are made simultaneously to each of the following: (a) to the Tribunal member[s] at their respective email addresses; (b) to the Parties, by communication to their respective legal representatives at their respective email addresses; and [in an ICC case] (c) to the ICC Secretariat at its email address. Electronic communications are deemed to be made as of the date and time sent. Where this Order provides for hand-delivery or delivery by mail or courier service, the notification or communication must (in the case of hand-delivery) reach the addressees by the relevant deadline, or, if a postal or courier service is used, be handed to the courier before expiration of the relevant deadline. [Where the addressees are members of an arbitral tribunal, receipt by the tribunal president determines whether the deadline is met.] For deliveries to the Tribunal by mail or courier service, please use the following addresses: [List addresses]

Example 2 - Electronic submissions

(a) All submissions shall be sent: (i) via email to all Parties and the Tribunal; (ii) where the Parties agree, via a case management website or other service provider; or (iii) via any other means agreed by the Parties. [Any ______ [describe document] shall also be submitted via courier or hand-delivery enclosed on [a] [USB/ flash drive(s)], within <??> business days of the original deadline.]

(b) Submissions are deemed submitted upon receipt - not opening or reading - of an email in the [Tribunal President's / Sole Arbitrator's] email server that: (a) contains the submission, or (b) provides a "confirmation of upload" if using a case management website or an external service provider. A "confirmation of upload" may be a short statement by the submitting Party's counsel sent via email, subject to the normal sanctions if such statement is materially inaccurate.

Comments: If a technical error occurs that prevents timely receipt in the sole arbitrator's or president's designated email server, the tribunal may need to determine when and whether the submitting party actually sent the submission. Because of issues related to firewalls and other uncertainties regarding email traffic, a "when sent" rule has certain advantages.

(c) Submission format and exhibits

(i) All submissions to the Tribunal shall be (i) in the electronic format [DOC, DOCX, RTF, PDF], or (ii) any other electronic format authorised by the Tribunal.

(ii) Such electronic format (i) must be commonly used for word processing, and (ii) must not hinder a Party's ability readily to access the information, so as not to deprive the Party of its due process rights.

(iii) All citations or references shall hyperlink the citation or reference to the corresponding exhibit, such that clicking on the citation in the text or in the footnote will direct the reader to the first page of the exhibit in the same submission.

(iv) Exhibits not already in electronic format shall be scanned. To the extent that an exhibit cannot be scanned and annexed or included in the [PDF, DOC, or DOCX] file, a copy shall be sent separately to the Tribunal and all Parties by [insert means here].

(v) All submissions shall be named as follows: [insert particulars of file naming system here; party-id; document category-id, numbering-id within each category].

Comments: The sample language allows the tribunal to accommodate any subsequent updates in technology (e.g. if DOCX upgrades to DOCX2, or some other as yet uninvented file format).

Example 3 - Videoconferencing/teleconferencing and examination of experts and witnesses

The Arbitral Tribunal may allow a witness or expert to be examined by videoconference and will issue appropriate directions. A witness or expert whom the Arbitral Tribunal has allowed to testify by videoconference shall be considered to have appeared at the hearing.

[and/or with the following language]

(a) When to be available

(i) Hearings and/or examinations of witnesses or experts may be conducted using videoconferencing technology, which will be [insert technology name].

(ii) Hearings and/or examinations of witnesses or experts may not be conducted by telephone conference.

(b) How to be ordered

All videoconferences in which the Tribunal is a participant shall be preceded by an order from the Tribunal specifying the date and time of, the purpose of, and the participants in the videoconference (the "identified parties").

(c) Camera placement/witness view

(i) Witnesses shall always be on-screen and on-camera, unless a recess is requested by counsel and granted by the Tribunal, which shall not grant a recess when a question is pending.

(ii) If videoconferencing, one video-camera shall always cover the entire room of the conference. It is not desirable to place a light source, such as a window, behind the witness.

(d) Identifying parties/required persons

(i) All participants shall be orally named by the representatives.

(ii) If a participant not identified in the Tribunal's order is present, the participant must present his or her identification on camera to the Tribunal, with an identified party attesting to the veracity of the identification.

(iii) If no identified party vouches for the participant, the Tribunal, after hearing the participant, shall rule whether the conference shall proceed, and whether the participant may remain.

(iv) Parties shall also have their designated IT Point Person "on-call" for videoconferences, to troubleshoot and resolve potential technical issues.

(e) Failure

In the case of a videoconference or teleconference, if a party becomes unable to participate due to technical issues, the party shall immediately notify the Tribunal by telephone and identify the last piece of information that was transmitted to it. The Tribunal shall immediately stop proceedings, and give all parties a short description of any information that might have been exchanged after the party became unavailable and before the notification.

Example 4 - Security and confidentiality

(a) Each Party shall use its best efforts to ensure the confidentiality of the proceeding and its related communications and submissions.

(b) Every email sent regarding the proceeding shall be encrypted. The Parties shall be each responsible to ensure their emails and enclosed submissions do not contain any [virus, etc.].

(c) All electronic submissions shall be password-protected. The access passwords for all of a party's submissions shall be the same, but different from those for access to submissions by other parties. The passwords shall not change for the duration of the Tribunal, unless security concerns require a change. The passwords shall be exchanged via [regular mail, telephone, or another non-electronic means of communication, such as in-person][via an email separate from the email containing the submission]

Comments: In many cases, the parties and the arbitral tribunal are not very concerned about security. Convenience of use is often given a higher priority than data protection, confidentiality, and data integrity. If these sorts of issues are of sufficiently great concern, the tribunal and the parties should be aware that qualified digital signatures, password management, and encryption require complex technical procedures to be implemented effectively. One way to better address security and data integrity issues would be to use a password-protected online file repository and messaging system for all relevant communications, the security and integrity of which is supplied as a service by the chosen ISP. The sample directions should be issued only after the tribunal is satisfied that implementation will work on the technical side.

Example 5 - Pre-hearing submissions

(a) Written submissions (briefs or memorials, along with any witness statements and expert reports) and their fact exhibits and any legal authorities shall be sent to each member of the Arbitral Tribunal and to opposing counsel in hard copy by registered mail, courier service, overnight mail, or any other delivery service that provides a delivery record, along with a CD/DVD-ROM or memory stick containing a copy of the same submission (brief or memorial, witness statements, expert reports, fact exhibits and legal authorities). In order to meet time limits, written submissions (including witness statements and expert reports, but without fact exhibits or legal authorities) shall also be sent by email to each member of the Arbitral Tribunal, [the ICC Secretariat], and opposing counsel. Written submissions shall be timely if the email to which they are attached is sent by ([time - specify time zone]) of the day on which the relevant time limit expires. Hard copies of the written submissions, together with any witness statements, expert reports and exhibits, shall be handed to the courier, postal or other delivery service not later than [the following business day] [within two business days].

(b) Electronic versions of written submissions (briefs, memorials, witness statements and expert reports; for fact exhibits and legal authorities, see paragraphs (c)--(e) below) shall be submitted in a fully text-searchable format - preferably PDF - and, if possible, in an ebrief version, containing hyperlinks to the witness statements, exhibits, and legal authorities cited.

(c) Electronic versions of witness statements and exhibits shall be submitted in text-searchable (scanned or non-scanned) PDF format, together with a list describing each of the exhibits by exhibit number, date, name of the document, author and recipient (as applicable).

(d) Legal authorities shall be submitted in electronic format only (unless a hard copy is specifically requested by the Tribunal), following the directions provided for witness statements and exhibits.

(e) Each witness statement, exhibit or legal authority shall constitute a single electronic document. Electronic versions of exhibits shall commence with the appropriate letter and number ("C-01" or "CLA-01", and "R-01" or "RLA-01"), so that they may be ordered consecutively in the electronic file.

Example 6 - Electronic file repository

(a) The Parties shall cooperate with a view to setting up by [dd/mm/yyyy] a secure electronic file repository (data room) that is accessible using an internet browser with encrypted communication and user access management.

(b) Unless otherwise allowed by the Tribunal upon agreement between the Parties, the online file repository shall be provided by a service provider with an established track record, whose terms and conditions ensure that only authorised users may access stored information and that agents or employees of the service provider will have no writing/reading/deletion rights unless the Tribunal provides written authorisation for the purposes of the individual case. The service provider must be subject to the standards governing the protection of personal data in [name of country].

(c) The software environment within which the file repository operates must generate logs for (i) access details and (ii) read, write and delete operations concerning each user, which the Tribunal can request from the service provider at any time. Whenever a file is uploaded or downloaded, the system shall automatically send an email containing the pertinent user information to an address to be specified by the Tribunal. Any file upload shall trigger a notification email to all Parties and members of the Tribunal, with a link to the repository where file or files have been uploaded.

(d) Each member of the Tribunal and each counsel will be assigned a personal user ID and password which only she/he may use and must keep strictly confidential.

(e) The file repository shall have the following subdirectories:

(i) Arbitral Tribunal. In this subdirectory, the Tribunal will upload all communications for the Parties, such as procedural orders and letters. Each arbitrator shall have the right to write and read files in this subdirectory. The [President/Sole Arbitrator] shall also have the right to delete files. Any Party shall have the right to read files, except those that are for the Arbitral Tribunal only, such as communications among its members.

(ii) Claimant. In this subdirectory, the Claimant shall upload all of its written submissions. It may store and download but not alter or delete any files already uploaded in its section. Any deletions must be requested, and will be made only by the Tribunal. The Respondent and the Tribunal shall have the right to read and download files from this subdirectory.

(iii) Respondent. In this subdirectory, the Respondent shall upload all its written submissions. It may store and download but not alter or delete any files already uploaded in its section. Any deletions must be requested, and will be made only by the Tribunal. The Claimant and the Tribunal shall have the right to read and download files from this subdirectory.

(iv) Each of the subdirectories shall include further subdirectories (to be created when a submission is made) stating in their file name the date of upload. Within each such subdirectory, the uploading party shall store the submission. Unless a different file structure is technically required for ebriefs, files with attachments to the written submission shall be stored within that same subdirectory.

(v) Files uploaded in the repository must be in searchable PDF format unless otherwise directed by the Tribunal. The following file formats are also permitted: [insert file formats].

(f) The access rights specified in subsection (e), (i)-(iv) above shall be implemented technically by the service provider. The Tribunal may direct the service provider to create for its internal communications a private subdirectory from which the Parties are fully excluded. The Parties hereby renounce and waive any right to be given direct or indirect access to this subdirectory in any legal proceedings. If a Party attempts to obtain such access, the members of the Tribunal shall be held harmless and shall bear no direct or indirect cost associated therewith.

(g) Any difficulty in uploading, downloading, or accessing the file repository must be notified to the Tribunal immediately and in no event later than 48 hours after the first occurrence was noticed. The Tribunal may issue any directions to any Party or the service provider that the Tribunal deems appropriate under the circumstances. The Parties shall provide the Tribunal with the required authorisations, declarations and signatures that the Tribunal may require in order to issue instructions to the service provider.

(h) The Parties agree that upon completion of the arbitration proceedings, the online file repository may be taken off-line and all stored files deleted from the internet server, subject to a full copy of all files in the repository having been stored on an appropriate data carrier before deletion. This includes the log files. The data carrier shall be stored for a period of [3] years from the conclusion of the proceedings with [the President of the Arbitral Tribunal / notary public / other service provider bound to observe strict confidentiality].

(i) Costs associated with setting up and maintaining the file repository shall be paid [in equal shares / describe any other appropriate proportion of payment] by the parties and become part of the costs of the arbitration that are to be allocated in the final award. The Tribunal is authorised to issue directions in regard to the payment of costs as it deems fit. This includes an order that a specific deposit be paid for this purpose.

(j) The Tribunal has the power to amend or change the above as it deems fit if this is required in its view by the circumstances that may arise. Before issuing such directions, the Tribunal will consult the parties.

2. IT point person

(a) Each Party's lead representative(s) shall appoint a person technically qualified and knowledgeable in respect of matters concerning IT to serve as an IT contact (the "IT Point Person") at that representative's office.

(b) The IT Point Person shall be reasonably available during office hours:

(i) to troubleshoot and resolve technical errors, and

(ii) to test and ensure the proper functioning of IT services

in regard to the systems that are under the direct or indirect control of the concerned Party for the duration of arbitration.

(c) The Tribunal has the authority to issue directions or queries to the IT Point Person, that in the Tribunal's opinion are required to ensure the technical implementation of IT for purposes of the arbitration. In case of continued unavailability or inefficiency of the IT Point Person, the Tribunal retains the authority to request a replacement by the Party that appointed the person.

Comments: The appointment of a technically qualified and knowledgeable IT point person may be useful in certain cases. An alternative would be for the parties to agree on an independent IT specialist to act as a joint IT point person, which aids parties with smaller resources. This alternative is probably more "progressive" than the more adversarial requirement of each party having its own IT point person. Nonetheless, a joint IP point person may not have the required access and rights of access to the IT infrastructure of each party, which may make this alternative unworkable in practice. The tribunal should be aware that parties with larger resources can retain a law firm with its own IT department, whereas a smaller firm may not have an in-house IT department, thereby making it more difficult or expensive for the smaller firm to appoint its own IT point person. A joint IT point person who is also available for troubleshooting and helping the arbitral tribunal may in certain cases be useful, especially if sophisticated security and data integrity measures need to be defined and implemented. In those circumstances, the scope of the technical authority of the joint IT point person vis-à-vis all parties would then need to be discussed and defined.

The IT point person should be (i) sufficiently qualified technically to resolve common technical issues (serious technical errors may be beyond the expertise of the IT point person and may require specialist expertise); and (ii) reasonably cooperative.

Example 7 - Electronic communications

(a) All matters relating to the use of information technology ("IT") during the arbitral proceedings should be subject to the agreement of the Parties and the Arbitral Tribunal or, failing such agreement, be determined by the Arbitral Tribunal.

(b) Written submissions and documentary evidence in electronic format shall be submitted as follows:

(i) Written submissions, scanned documentary evidence and evidence that was created only in electronic format shall be submitted as true digital copies, either in PDF or TIFF format.

(ii) For the purposes of challenging authenticity and related issues, the evidence submitted in accordance with (b)(i) shall be subject to the same rules concerning the authenticity of evidence that would apply to photocopies.

(iii) The members of the Tribunal and the other Party shall each receive from the submitting Party one physical (e.g. printed, and - in the event of letters or memorials - signed) copy of any document submitted in electronic format via ordinary mail or courier service.

(iv) All electronic files that are submitted shall use the file naming system set forth above or - in the case of written submissions - a meaningful name (such as, for example: "ClaimantSubmission_ddmmyyy" / "ClaimantLetter_ddmmyyy" // "RespondentSubmission_ddmmyyy" / "RespondentLetter_ddmmyyy").

(c) Subject to all Parties and each member of the Tribunal signing the [Acceptance of ISP Terms of Usage], submissions in electronic format and/or written communications shall be made via the [name ISP file repository / cloud service] facility in accordance with the Conditions of Access and Use established by the ISP for this purpose.

(d) When all Parties and the Tribunal have signed the form referred to above and ICC has provided access to [name ISP file repository / cloud service], each Party shall upload its prior written submissions with exhibits to [name ISP file repository / cloud service] within 14 days following the date on which it was given access thereto.

(e) Any Party experiencing technical or other difficulties shall immediately notify the Tribunal thereof by email or any other appropriate mean of communication, with a short description of the nature of the difficulty and seek instructions as to how the problem may be overcome.

(f) If it finds it to be appropriate under the circumstances, the Tribunal may issue new directions in regard to using IT that supplement or derogate from the above provisions, after having heard the parties.

D. SAMPLE WORDING FOR PRE-HEARING ORDERS

1. Testimony via videoconference (where the Respondents have sought leave to call a specific witness via videoconference)

(a) During the hearing on quantum scheduled for [date] in [place], [name of witness], the Respondent's witness, shall be examined by videoconference.

(b) The Respondent shall be responsible for organising the videoconference and shall report to the Tribunal with an update seven days before the hearing, including the details of the location for the video link in [country] where [name of witness] shall be sitting (hereinafter referred to as the "witness room").

(c) The Respondent shall use reliable equipment for the video link. The day before the hearing, the Respondent shall run a test between the witness room in [country] and [hearing venue]. During the examination, it shall arrange for one technician to be available in the hearing room and another in the witness room to assist in case of difficulties. Both technicians may be present in the hearing room or the witness room, as the case may be, during the examination. One person at each end of the video link shall have a telephone number (other than the one used for the video conference) by which to call the other end in case of a breakdown in the video link.

(d) A representative of the Claimant is authorised to attend the examination in the witness room. The Claimant shall give the name of the person to the Tribunal seven days before the hearing. That person shall present the documents to the witness if cross-examined on documents.

(e) A representative of the Respondent is also allowed to attend if the Respondent so wishes.

(f) [Name of witness] shall have his or her witness statement at hand (with exhibits), but no other documents.

(g) If the video communication breaks down, the Tribunal will determine what action to take, including possibly granting the Claimant more time for cross-examination, or what inferences to draw.

(h) [Name of witness] shall be heard first. The order of the other witnesses will be discussed at the pre-hearing telephone conference. The Respondent shall pay the costs of the videoconference, including the reasonable travel expenses of the Claimant's representative who will be present in the witness room. The final allocation of costs is reserved for a later date.

2. Use of electronic presentation technologies

(a) If it wishes to do so, a Party may project a true and accurate image of an exhibit onto a screen in the hearing room. The image must be visible to all counsel, the Tribunal and the witness, and must be large enough to be legible.

(b) Any counsel who intends to examine a witness about a particular exhibit should offer to provide the witness with a paper copy of the exhibit.

(c) If both Parties wish to project images, they should cooperate to ensure that they both have equal access to the technology and that duplicative projection equipment is not necessary.

E. OTHER SAMPLE WORDING FOR THE PROCEDURAL TIMETABLE / PROCEDURAL ORDERS

1. Written communications and pleadings

(a) All communications and pleadings with the Arbitral Tribunal will be in [English/Mandarin].

(b) All written communications with the Arbitral Tribunal, including the submission of pleadings and documents by the Parties in the course of these proceedings, must be made in electronic form, sent simultaneously to the Arbitral Tribunal, the other Party and the ICC Secretariat, stating the reference [xxx/xxx]. Hard copies of documents sent electronically may be submitted in addition, if a Party so wishes.

(c) Communications from the Arbitral Tribunal to the Parties shall be sent by email [and, according to the Arbitral Tribunal's choice, by post or courier service]. Any communication sent to one Party will simultaneously be sent to the other Party and to ICC by [email/the most efficient means of communication].

(d) Paragraphs in the Parties' pleadings and written submissions shall be numbered consecutively. The hard copies of pleadings and documents will be submitted in A4 format printed recto verso where possible. Together with their pleadings, the Parties will submit all documentary evidence in their possession supporting the factual allegations made in those pleadings.

(e) Format for electronically submitted pleadings, communications and documents. Electronically submitted pleadings, communications and documents must be in searchable PDF format and, whenever practicable or requested by the [Tribunal], in processable DOC, RTF, or other equivalent format that may be processed in MS Office or Open Office. All electronically submitted material must be produced in machine searchable form (e.g. scanned documents in PDF or any other image format must allow for text search).

2. Documentary evidence (historical evidence)

(a) Documentary evidence must be submitted as electronic true copy in bitmap format contained in a PDF file that is machine readable and searchable or as a multipage graphical file (e.g., multipage TIFF), together with an ocr'd machine readable and searchable version thereof either in DOC, RTF (or equivalent) or PDF format.

(b) Each document shall be produced as an individual electronic file bearing the same file name as the document number (Exhibit C-001 = file: C-001.pdf).

(c) Exhibits shall be numbered consecutively: C-001, C-002 etc. for Claimants and R-001, R-002 etc. for Respondents. Exhibits that are identical to exhibits already submitted by a party should not be resubmitted with a different file name or numbering by another party.

(d) Legal authorities, such as case law or legal commentaries, will be submitted in accordance with 2(a) above, separately, and marked consecutively CL-001, CL-002 etc. or RL-001, RL-002 respectively. The relevant passages will be clearly marked or highlighted.

(e) The first page of each electronic exhibit will display the exhibit name/number in the top right corner. The page numbers of each exhibit will be identified by Bates-numbering.

(f) Along with the exhibits, the parties will submit a List of Documents in Excel or equivalent spreadsheet format organised in a table as follows (example):

(g) Documents in electronic form shall be submitted to [Tribunal] either by email, on a CD-ROM or USB stick, or through an internet download.

(h) Electronic and hard copies of documentary evidence will be considered authentic, unless a Party shows cause to consider otherwise.

(i) Upon request or on its own initiative, the [Tribunal] may request a party to produce documentary evidence that was first created in electronic format in that format or any other electronic format that allows the appropriate inspection. The [Tribunal] may also order a forensic inspection of any such electronic file including inspection and fact finding within the system environment where copies of such electronic document may be recorded.