If parties involved in an arbitration agree to resolve only the issue of liability, may the arbitrator issue an order determining not only liability but the appropriate remedies as well? According to the Oregon Court of Appeals, the answer is yes, as long as the parties don't waive the statute that gives the arbitrator broad authority to order remedies.
In Couch Investments, LLC v. Peverieri, a landlord and tenant submitted to an arbitrator a dispute regarding allocation of responsibility for the cost of improvements to the property. The agreement to arbitrate stated that liability was "the only issue to be resolved." Notwithstanding the agreement, the arbitrator decided liability and also issued an order setting out a process for completion of the improvements. The landlord objected that the remedies were outside of the parties' agreement.
ORS 36.695(3) states that "an arbitrator may order such remedies as the arbitrator considers just and appropriate under the circumstances." According to the Court of Appeals, that statute acts as a default to grant arbitrators broad authority to order remedies. If the parties do not express an intent to waive the statute, the arbitrator may properly order remedies. Accordingly, the Court of Appeals affirmed a judgment in the form of the arbitration award.
The decade-old Zubulake v. UBS case set off a seismic shift in electronic discovery that many lawyers and litigants still don't fully comprehend. One lesson many have learned the hard way is that the electronic discovery rules and practices that have been developed post-Zubulake must be a regular part of every organization's document management plans.
Zubulake was a standard employment discrimination lawsuit in the U.S. District Court for the Southern District of New York that is now seen as a turning point in electronic discovery. This article provides an excellent summary of Zubulake and its impact.
Increasingly, courts are disinclined to tolerate a party's failure to work cooperatively to minimize the cost of eDiscovery, as this plaintiff painfully discovered.
Give just a moment to consider your organization’s electronic document protocols. Processes should be in place long before any subpoena or request for records arrives. When your organization is hit with a lawsuit, what is the plan for preserving, requesting, organizing and producing documents?
The Litigation Technology Team at Ater Wynne manages electronic documents and eDiscovery for clients in litigation of all sizes, from small document collections with just one or two file types to large, complex sets involving terabytes of data, millions of documents, and dozens of file types. We utilize protocols and best practices developed in-house and multiple eDiscovery software platforms, keeping document management practices up-to-date and satisfying the courts' requirements.
In matters of eDiscovery, an ounce of prevention is better than a pound of cure. For more information about Ater Wynne’s Litigation Technology Team, contact Kara Lindsay, Chief Litigation Technology Specialist at firstname.lastname@example.org.