The document production phase may be regarded the most controversial aspect of arbitral proceedings with parties' views potentially differing significantly based on their legal backgrounds. Many parties from common law jurisdictions will consider document production crucial for ensuring procedural fairness and addressing informational disparities. Conversely, parties from civil law jurisdictions typically oppose document production, perceiving minimal procedural benefits that do not justify the substantial costs and time associated with such procedure.
Notwithstanding, any party facing potential claims in a post-M&A proceeding may have a strategic interest in excluding or limiting document production. Claims in post-M&A proceedings are often based on allegations of intentional warranty breaches or even accusations of fraud. In these situations, the high hurdles generally posed by the requirements of substantive law combined with the claimant's burden of proof may be undermined by the possibility of an extensive document production.
A party may therefore consider excluding or limiting a document production during the negotiation of the arbitration clause. Where the exclusion of document production was not in the best interest of a party or not agreeable between the parties at the stage of contract negotiations, parties should discuss the scope and timing of the document production at an early stage of the proceeding, usually in the first case management conference.
Determining the scope of document production: The scope document production can be effectively determined by focusing on specific topics or categories of documents that are directly relevant to the issues in dispute. Parties should further consider agreeing on a protocol specifying the relevant time frame for production or certain custodians.
Set short, yet realistic, deadlines: The timetable should allow for sufficient time to realistically review and produce relevant documents. Keeping the deadlines reasonably short can however go a long way towards forcing the parties to comply with any agreed-upon limits in scope and set the tone for an efficient proceeding also in the phase of document production.
The tribunal's cost decision can further foster the parties discipline in adhering to an agreed-upon protocol for the efficient conduct of the document production phase. Tribunals often consider the conduct of the parties during the arbitration, including their approach to document production in their cost decision. Parties that engage in excessive or unreasonable document requests thus risk being burdened in the cost allocation.
In conclusion, parties can navigate an arbitration more effectively by considering the need for a document production as early as during the contract negotiations and making timely decisions on limiting the scope and time of a document production phase. However, it will ultimately be in the tribunal's hands to deny excessive requests and reflect the parties' conduct in its decision on the allocation of costs.
