Discovery in arbitration is not the detailed, rule-driven process that we see in the judicial forum. Unlike the Federal Rules of Civil Procedure—which include several rules and subsections on discovery procedures and timing—discovery in arbitration is limited to what may have been included in the parties’ agreement to arbitration, if anything, or to the generally sparse discovery portion of the rules provided by the arbitration forum. As explained by the U.S. Court of Appeals for the Ninth Circuit, this is because “[a]rbitration is a dispute resolution process designed, at least in theory, to respond to the wishes of the parties more flexibly and expeditiously than the federal courts’ uniform rules of procedure allow.” Kyocera Corp. v. Prudential-Bache, 341 F.3d 987 (9th Cir. 2003). As such, “parties have complete freedom to contractually modify the arbitration process by designing whatever procedures and systems they think will best meet their needs.” Id. (citing Volt Info. Scis., Inc. v. Bd. of Trs., 489 U.S. 468 (1989)).
July 31, 2022 Practice Points
Discovery in Arbitration
Discovery in arbitration is not the detailed, rule-driven process that we see in the judicial forum.
By Ivey Workman
Guidelines for Discovery in Arbitration
In the event that there is no contractual provision, during the prehearing arbitration process the parties should discuss and reach agreements with opposing counsel related to any limitations on written discovery, how many depositions may be needed, and reasonable timelines to conduct fact discovery. This would be most beneficial during preparations for the preliminary hearing.
The American Arbitration Association (AAA) addresses discovery for consumer cases in Rule 22:
R-22. Exchange of Information between the Parties
(a) If any party asks or if the arbitrator decides on his or her own, keeping in mind that arbitration must remain a fast and economical process, the arbitrator may direct
1) specific documents and other information to be shared between the consumer and business, and
2) that the consumer and business identify the witnesses, if any, they plan to have testify at the hearing.
The AAA rules go on to limit the parties to the above provision for discovery, “unless an arbitrator determines further information exchange is needed to provide for a fundamentally fair process.” R-22(c). This is in line with the Arbitration Discovery Protocols provided by Judicial Arbitration and Mediation Services, Inc. (JAMS) to be used “in furtherance of achieving an efficient, cost-effective process that affords the parties a fair opportunity to be heard.” The JAMS materials provide its arbitrators with the following list of relevant factors to consider when determining the scope of discovery: nature of the dispute, agreement of the parties, relevance, reasonable need for requested discovery, privilege and confidentiality, and the characteristics and needs of the parties.
Conclusion
Accordingly, when you find yourself in arbitration, it would be beneficial not only to work with opposing counsel to create a discovery plan but also to review the guidance of the appropriate arbitration forum. Because the goal of arbitration is efficiency, it is important to analyze your case and make productive discovery requests limited to the arbitrable issue, which may not encompass all claims between the parties that may be brought in court.
Ivey Workman is an associate attorney with Regard Law Group, PLLC, in Lexington, Kentucky.
Copyright © 2022, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).