In this series of articles we have been considering ways to make arbitration more efficient and inexpensive, while maintaining a fair opportunity for both sides to present their case. We first focused on discovery in general, noting that the flexibility of arbitration can help provide ways to obtain necessary information while avoiding the expense of court-like discovery. We then dealt with issues of non-party discovery and then took up dispositive motions, other areas of possible unnecessary expense. We now arrive at discovery motions.
Discovery motions in general
For the first part of my career as a civil litigator, discovery motions took up much time and effort. After serving and negotiating over elaborate requests, the parties would often reach an impasse and move the discussion to the court house. The parties would prepare elaborate briefs with citation to the rules and citation to somewhat similar cases to justify the request for information or to justify a refusal to provide it. Since knowledge is power, the side seeking the information was convinced the other side was holding out, hiding key information that would be the key to the case. The party opposing discovery was often convinced the other side was simply trying to spend it to death. And so the fight carried on.
In many courts, magistrates and judges now take a different approach to the whole matter. They first require a letter-brief or phone call to go over the issues and resolve them more informally. This is not uniform, but is becoming more common around the country.
Arbitrators have always had this tool available and use it all the time. Perhaps we should use it more and use some other available tools as well.
A holistic approach to discovery and motions
AAA Commercial Rules require the arbitrator to (as I have noted in a couple of these articles) “manage any necessary exchange of information among the parties with a view to achieving an efficient and economical resolution of the dispute, while at the same time promoting equality of treatment and safeguarding each party’s opportunity to fairly present its claims and defenses.”
I have found the best way to make discovery efficient is to take it up at the first conference. And in some detail — not just generally. The parties and arbitrator can discuss the sort of discovery the parties contemplate and then set a deadline for completing requests and answers. Here is an example:
The parties shall serve their written requests for documents by November 1, 2015. The parties shall provide their responses to those requests and responsive documents by December 2, 2015.
Setting the dates is generally preceded by a discussion of what type of discovery, if any, is necessary for each side. We also discuss the time realistically needed to complete the request and response.
Anticipating that the parties may not completely agree on what it or the other party actually needs to “fairly present its claims and defenses,” I usually provide an informal process for resolving that. I build in a time for a party to obtain arbitrator input on the request, if a discussion with the other side doesn’t resolve the issue, by addressing what more it believes it needs in a letter to be provided by a set date. The other side has a week or so to respond, and the first party may reply if necessary.
Some arbitrators prefer a brief conference call to use of letters. But to assure that necessary information is available without breaking the bank, it can be important to allow each side an opportunity to present its position, albeit concisely, in writing. Normally, the relatively short letters provide enough information to decide whether the discovery makes sense or not. But if not, a quick conference call can usually clear things up.
Importantly, the pretrial order should also make it clear that court-like discovery motions are not allowed, and this more informal procedure should be followed instead.
Planning and discussion – not motions
So really, there is no need for formal discovery motions in arbitration. Instead, discovery planning should set the basic contours and dates of information exchange. This is then followed by an informed discussion about the extent of discovery that must be provided. That way we can balance the cost of getting the information with the need for getting it.
This is all not to say that all these issues are easy or can be treated superficially. Arbitrators are, for example, required to respect attorney-client privilege, which can involve some fairly complex issues in some cases. And discovery of electronic information can become technically challenging. But this more informal process suffices for most discovery issues and provides the background needed to know whether there is a need to explore some very specific issues a little further if they arise.
Dave's ADR: IP, Commercial 