The American Arbitration Association (AAA) has always been committed to providing a more expeditious and cost-effective process than traditional litigation. Recently, through its National Construction Dispute Resolution Committee, the AAA collaborated with industry professionals, construction lawyers, and arbitrators to develop a set of best practices to manage pre-hearing discovery in construction arbitrations. These recommendations are applicable to all construction cases administered by the AAA under the Construction Industry Arbitration Rules or Commercial Arbitration Rules (the Rules). The AAA encourages arbitrators and advocates to use the Discovery Best Practices (best practices) as a guide for document exchange, site inspections, electronically stored information (ESI), depositions, and discovery disputes.
Construction disputes typically involve an extensive array of documents, crucial for each party’s preparation for the hearings. The AAA urges the parties to adhere to a focused and proportionate approach when requesting and exchanging documents. Although the Rules outline the scope of document exchange, these best practices further encourage the parties to submit detailed statements of claims and defenses as early as possible to narrow the issues, identify critical documents, and set clear expectations before creating a case schedule. Throughout this process, the arbitrator maintains discretion and should consider a case’s size and complexity to ensure the document exchange is tailored to each dispute.
While site inspections can be beneficial, they can also be expensive and time-consuming. The AAA encourages arbitrators to carefully assess the necessity for a site visit. If it is deemed necessary, the best practices recommend that the parties agree upon a pre-established protocol and provide a guide with photos to focus the arbitrator’s attention on relevant issues and control time and costs.
Because most pertinent documents are stored electronically, parties should make ESI accessible in the manner it was maintained, maximizing efficiency in document retrieval. At the pre-hearing conference, arbitrators should inquire about the type, location, and accessibility of electronically maintained information and encourage the parties to agree on an ESI protocol. If the cost of producing electronically stored information is excessive, the arbitrator may also shift costs.
Depositions can easily bog down a construction arbitration, resulting in high fees and lengthy case schedules. Therefore, depositions should only be considered when they promote the goal of efficiency and are proportional to the case’s size and complexity. To accomplish appropriate proportionality, the arbitrator may limit the number of individuals deposed and the duration of each deposition. Furthermore, arbitrators may also deny the deposition of an expert witness if the expert witness has already provided a written report.
Discovery disputes can consume substantial time and resources if not handled properly. To manage discovery disputes, the parties are highly encouraged to confer in good faith and attempt to resolve disputes before involving an arbitrator. Should the arbitrator need to get involved, these best practices recommend that a prompt telephonic conference be held to address conflicts, and any resolution should subsequently be confirmed in writing.