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December 06, 2023

Managing Discovery in Construction Arbitrations with AAA’s Best Practices

Michael A. Marra and Jacqueline Vega

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.

    It is important to note that arbitrators have the authority to impose sanctions when parties fail to comply with the Rules or an arbitrator's order. While sanctions should be exercised judiciously, a reminder of their possibility can encourage parties to act responsibly. Extreme measures like precluding proof should be reserved for exceptional cases where obstructive behavior necessitates significant consequences.

    In some construction disputes, the AAA recognizes the need for balance in requesting third parties’ cooperation when they possess relevant information. Third-party document discovery should be limited to Regular Track or Large Complex cases, and parties must demonstrate the materiality and relevance of the information sought. Arbitrators should also consider the enforceability in the relevant jurisdiction and the cost and burden on the third party before issuing third-party subpoenas. 

    The Discovery Best Practices are a key component in creating a quicker, cost-effective, and conclusive form of dispute resolution. The AAA’s guidance asks that arbitrators play an active role in managing discovery and overseeing these practices. With the cooperation of advocates, the best practices are a unique benefit and ensures that construction arbitration is the preferred form of dispute resolution in the industry.

    A copy of the Discovery Best Practices can be found at our website using the link below:


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    Michael A. Marra

    Vice President Construction Division American Arbitration Association Philadelphia, PA

    Jacqueline Vega

    JD Director of ADR Services New York, NY