AVOIDING LITIGATION-STYLE DISCOVERY IN ARBITRATION

Craig Beles, Phil Cutler, Mel Simburg

WSBA DR SECTION MEETING, IMPACT HUB, SEATTLE

MARCH 18, 2015

Discovery is a necessary part of any dispute resolution process. It is necessary on two levels:

  • The parties and their counsel need sufficient discovery to analyze the case for settlement or mediation, and
  • They need sufficient discovery in order to properly prepare for the evidentiary hearing.

Parties generally choose arbitration (whether voluntarily by both parties in a negotiated contract or imposed on the party with lesser bargaining power in an “adhesion” contract) because of its general economy and speed with which disputes are resolved. Arbitration’s goals of speed and economy, however, can be achieved only if discovery is managed efficiently by the arbitrator, in “partnership” with the parties and their counsel, and is consistent with those goals. The wholesale import of federal or state discovery rules is generally inadvisable. The touchstone in litigation is whether the discovery “may lead to the discovery of admissible evidence.” By contrast, in arbitrationthe touchstone most often used by arbitrators in evaluating parties’ requests for discovery is whether the requested discovery is “relevant” to the facts in controversy and the issues presented. The scope of appropriate discovery in a particular case is generally a function of:

  • the issues presented
  • the complexity of the case
  • the amount in controversy
  • the parties’ arbitration agreement
  • applicable federal and state law
  • the rules under which the arbitration is being conducted
  • the arbitrator’s general philosophy of case management and
  • the degree to which the parties and their counsel cooperate with each other and with the arbitrator in developing and implementing a “discovery” plan.

A good resource for arbitrators – and parties and their counsel – is the College of Commercial Arbitrators Protocols for Expeditious, Cost Effective Commercial Arbitration, adopted following a 2009 “Summit” on commercial arbitration sponsored by the CCA, JAMS, AAA and the ABA Dispute Resolution Section. They are available on the CCA’s website –

Some things for arbitrators to be mindful of from a case management standpoint, particularly as regards “discovery”:

  • How arbitration clauses and agreements can set the stage for dealing with discovery and case management; important at the drafting stage but arbitrators should be cognizant of their ability to recommend that a too-restrictive arbitration agreement be modified by the parties for a particular case
  • The importance of the initial preliminary hearing, pre-hearing discussions among counsel regarding discovery and case management, and arbitrator guidance to counsel on these subjects prior to the initial prelim; see, e.g., AAA Commercial Rule P-2 for suggested subjects/topics (all AAA rules are available at
  • The flexibility given the arbitrator by the AAA rules in discovery (see, especially, Rule R-22, AAA Commercial Rules); and in case management generally; other provider-organization rules give similar flexibility.
  • The scope of the arbitrator’s discovery, case management and subpoena powers under the Federal Arbitration Act (9 USC §7), the Washington Arbitration Act (RCW 7.04A.150 and .170, corresponding to RUAA Sections 15 and 17), and AAA Rules (e.g., Commercial Rules R-22, 23, 34(d)); note that 3rd party discovery in cases only governed by the FAA is limited by some Circuits’ interpretation of 9 USC §7.

Tonight we will discuss some ways in which the arbitrator can manage discovery to achieve arbitration’s goals of speed and economy:

  1. Hold an effective preliminary hearing.
  2. Deal with appropriate information exchanges:
  • Early party exchange of “reliance” documents
  • Early party identification of key fact witnesses
  • Obtaining “other” information necessary to prosecute or defend claims; require parties to meet and confer and propose a plan for obtaining (with arbitrator approval) necessary information:
  • Depositions – How many? Who? Length?
  • Interrogatories – Are they necessary? Should they be permitted? Why?
  • RFPs – Beyond the exchange of reliance documents, what RFPs are necessary or should be permitted?
  • Requests for Admission – Are they necessary? Should they be permitted? Why?
  1. E-discovery – A reality but what principles should guide it?
  2. Experts – Are experts necessary? When should parties disclose experts? Simultaneously? Staged? Content of disclosure? Should depositions be permitted? Why?
  3. Protective order – Is one necessary? Counsel should meet and confer and propose one.

March 18, 2015 ADR Section Meeting Outline – 1