Potentially Lethal Bytes: Why E-Discovery is Crucial for Employees in Arbitration

Peter Whitehead
Daniel Estrada
Star Swift

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DOI: 10.2190/WR.15.3-4.c

Abstract

More and more, employers are relying on mandatory arbitration clauses in employment contracts to save them the time, money, and public image they might risk in traditional litigation. In this tight economy, many employees are assenting to these mandatory arbitration clauses to land a job, but submitting to arbitration is not the same as waiving one's constitutional right to due process of the law. Despite enjoying the concession of mandatory arbitration, employers are often reluctant to submit to electronic discovery in arbitration, claiming either that the digital data no longer exist, or that it would be too costly to comply with the discovery requests of the employee. This article illustrates that most of the evidence necessary to provide the employee with a full and fair hearing at arbitration is now created and stored in digital form. Therefore, arbitrators must require reasonable discovery as a fundamental provision of due process, because so much of this critical evidence is likely to exist solely in electronically stored information, which typically exists, conveniently and exclusively, within the control of employers only. To better inform employees of their e-discovery rights, the authors have surveyed and summarized the developing legal authority regarding e-discovery, and they have provided three actual, nonunion arbitrations to illustrate the electronic information that may be requested prior to an arbitration hearing.

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This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License.