March 05, 2019 Article

Getting the Discovery You Need in Arbitration

As courts continue to push disputes to arbitration, parties must confront the limitations of that forum.

By Carly Milner and Aurra Fellows

In one of its first opinions of 2019, the U.S. Supreme Court continued a trend of pushing cases to arbitration. The Court unanimously held that the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., requires arbitrators, not courts, to decide the question of arbitrability if the parties have so agreed, even if the dispute clearly is outside the scope of the parties’ arbitration clause. See Henry Schein, Inc. v. Archer & White Sales, Inc., No. 17-1272, 2019 WL 122164, at *4 (U.S. Jan. 8, 2019). As courts continue to push disputes to arbitration, parties must confront the limitations of that forum. Parties long have assumed that limited discovery in arbitration would translate to a benefit—saving costs and time—but what if those limits prevent a party from proving its case? Before agreeing to arbitrate or moving to compel arbitration, parties need to understand what discovery will be available and whether that meets their needs. 

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