Cost-Effective Document Disclosure in Construction Arbitration

Senior Counsel

October 22, 2021

There are four rules-based approaches to document disclosure in legal disputes. From broadest to narrowest they are:

Relevant: Each party discloses all documents relevant to the issues in dispute.
Responsive: Each party discloses documents responsive to requests by the other party.
Material: Each party discloses only those documents that could have an impact on the outcome of the dispute.
Reliance: Each party discloses only those documents upon which it intends to rely.

Each of these approaches is often supplemented by two underlying principles: first, a party can always be ordered to produce a document the arbitrator deems relevant (which enhances fairness but expands disclosure), and second, all disclosure models may be subject to proportionality, so that the cost of disclosure does not overtake its value to the parties.… Read More

Heuristica Proposes Better Disclosure Rules for Construction Arbitration

Despite some initial trepidation, lawyers arbitrating construction cases by teleconference have found the “new normal” to be efficient and cost effective. But the inconveniences associated with face-to-face arbitrations are minuscule compared to the costs and risks associated with the document disclosure process. We need a “new normal” way to request and produce relevant documents in a virtual process.

It’s time to consider a standard, simplified disclosure rule that takes advantage of available technology to improve the outcomes of construction arbitration.

In our experience, many of the pain points associated with the exchange of documents could have been avoided had the parties adopted a mutually agreeable framework at the outset of a matter, and prior to the review and exchange of productions.… Read More