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This is part two of our three-part series on the legal obligation to preserve digital evidence for discovery in the arbitration context. Part one outlined the inherent tension between arbitration, with its emphasis on efficient dispute resolution, and litigation, which has developed ever-more comprehensive and far-reaching (some might say excessively burdensome) rules for evidence preservation in the pursuit of procedural fairness and full disclosure. This article reviews the e-discovery frameworks and protocols being developed by various arbitral administrative bodies and looks at the outcomes of representative cases in which arbitration parties claimed that their opponents improperly failed to preserve digital evidence. Part three, which will appear next month, will offer some concrete suggestions on how to navigate the intersection between arbitration and e-discovery obligations.

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