The extent of discovery and document production in legal disputes can often determine the outcome. Not just because of what may or not be disclosed in the process but because the potential cost of the exercise may deter one side from pursuing the case to its conclusion. When parties to a dispute decide to arbitrate rather than litigate through the courts, so-called Redfern Schedules will usually provide the framework within which document production or non-production takes place. Here we examine Redfern Schedules. We look at how they are compiled, and we examine some of the principles applied by arbitrators when deciding whether or not to order production of the documents listed in the schedules. You should and keep in mind that parties to arbitration are expected to take a proportionate and reasonable approach to the process.
What Are Redfern Schedules?
We’ve discussed Redfern Schedules before, explaining their use and the kind of objections parties can make about producing documents referred to in the schedules. Above all arbitration is intended to be a less formal process than litigation – one over which the parties have a greater degree of control than if they were involved in court-based litigation. The schedules in effect summarise for the arbitrator the position of the parties to document disclosure without the need for formal, in-person oral argument between lawyers. A well-drafted Redfern Schedule will hone in on the specific issues that are at the heart of the case and enable the arbitrator to make a reasoned decision on whether or not a particular type of document should be produced.
Redfern Schedules: The Format
Redfern Schedules usually contain the following columns:
- Document/ category of document requested
- relevance /materiality and reason for request
- Claimant’s response to request – including objections if any
- Reply from the respondent to claimant’s objections
- Decision of arbitrator
Document production by one side to the other in legal disputes is crucial. It helps a party to prove facts to an arbitrator that it would be unable to if it had to rely solely on the documents it had in its own possession when the dispute originally arose. A Redfern Schedule however should never be used as a fishing expedition by a party to obtain documents speculatively. Indeed, most arbitral bodies, including the International Bar Association (the IBA) have provisions place to discourage such widely drawn document requests.
It’s also worth mentioning that once parties know that document production will take place using a well-established tool like the Redfern schedule (and that they will have to disclose damaging as well as helpful material) they may be more reluctant to exaggerate their case in a way that prolongs proceedings unnecessarily.
How Do Arbitrators Approach Redfern Schedules? The IBA Rules, 2020
It’s up to the parties and the arbitration tribunal to decide how to approach document disclosure. A common approach is to adopt the IBA Rules on Taking Evidence In International Arbitration. If this is the case, there will normally be an explanatory note before the Redfern Schedule columns themselves indicating that the conduct of document production is to be guided by IBA rules or similar. The IBA rules in particular specify that any request for production of a document should contain:
- A description of each requested document that’s sufficiently detailed to enable the other side to identify it, or
- A description in sufficient detail of a narrow and specific category of documents that are reasonably believed to exist. For electronic documents this description can contain identifiers such as keywords to promote efficient document searches
- A statement as to how the requested documents are relevant to the case and material to its outcome
- A statement that the documents requested are not in the possession or control of the requesting party or a statement of the reasons why it would be unreasonably burdensome for the requesting party to produce such documents
- A statement of the reasons why the requesting party assumes the documents are in the possession of another party
When it comes to deciding whether to order disclosure of a document or not the IBA rules indicate that refusal may be reasonable in the following circumstances:
- Lack of sufficient relevance to the case or materiality to its outcome
- Legal impediment or privilege
- Unreasonable burden to produce the requested evidence
- Loss or destruction of the document
- Compelling commercial or technical confidentiality
- Special political or institutional sensitivity (including evidence that has been classified as secret by a government or a public international institution)
- Where there are considerations of procedural economy and proportionality
- There has been or would be illegality in obtaining the document
The arbitrator will assess the production request for each document or class of documents for relevance and materiality and rule on each in the final column of the Redfern Schedule. The type of decision an arbitrator will make may include:
- Requiring production as requested
- Limiting production to those documents that are directly relevant
- Limiting production to documents covering certain timeframes
- Refusal to order production of the requested documents
Comment
Redfern Schedules originated out of a desire to reduce the time and money spent in document disclosure exercises in arbitration cases. As arbitration has developed the Redfern tool is sometimes abused and used as fishing exercise. It’s clear though from the commonly used IBA rules and others that there’s a real determination to stamp out this kind of overreaching requests for disclosure. This is seen for example in enabling the use of keyword search results to establish whether a document that’s been requested exists or not and the tendency of arbitrators to refuse disclosure on the ground of procedural economy, proportionality and fairness.
Contact Us
Shubha Nath at Nath Solicitors on 44 (0) 203 983 8278 advises UK and international companies on arbitration under various arbitral bodies including eth IBA and LCIA. or online. We’d be more than happy to have an initial chat about your case and how we may be able to help.
