In this round of Arbitration Tips-N-Tools, Professor Amy Schmitz asks some of the leading arbitration practitioners about obtaining discovery in arbitration, especially in a digital world and faced with the complexities of the Covid-19 pandemic.
Round 3: What are your 3 top tips and/or tools with respect to obtaining discovery in arbitration – especially in the digital era and complexities of Covid?
A) Theo Cheng –
- Be mindful that an arbitration proceeding is not court litigation, especially when it comes to discovery. Even in fields where advocates have essentially come to a consensus to provide for more robust discovery than in a typical arbitration process (such as employment law), arbitration cannot live up to its promise of being expeditious and cost-effective if discovery mechanisms from court rules are wholesale adopted into the arbitration process. Advocates should expect that exchanging documents is the primary (and often only) discovery that should take place and that devices such as interrogatories, requests for admission, and even depositions are not commonplace.
- The tribunal should ascertain the need for third-party discovery, along with counsel’s familiarity with the applicable law governing how arbitral subpoenas or summonses are issued. This is an often-misunderstood area of arbitration practice, and the tribunal should be in the position of providing as much assistance to the parties so that they can obtain the relevant and material evidence they need in order to present their case. To that end, providing advocates with resources, such as a form of model subpoena or summons, can help facilitate those requests. One particularly good source is the New York City Bar Association’s A Model Federal Arbitration Summons to Testify and Present Documentary Evidence at an Arbitration Hearing.
- As a consensual process for resolving disputes, arbitration places a premium on parties working together to resolve as many of their interlocutory disputes as possible before having to ask the tribunal to intervene. Moreover, because a tribunal is being compensated for the time it spends on the matter, involving the tribunal necessarily adds to both cost and delay in the proceeding. Thus, although a tribunal stands ready to resolve any disputes that should arise during the pendency of a matter, parties should strive to minimize discovery disputes, as they invariably increase the time and cost of the proceeding.
B) Daniel Urbas –
- Have parties negotiate admitted facts to reduce the scope of discovery or eliminate altogether.
- Limit discovery to specific issues and set time durations.
- Schedule only after both parties have committed to a detailed statement of claim or statement of defense (filed after the notice of arbitration and response to notice).
C) George Friedman –
- No paper: In the age of COVID, let’s avoid having material produced in paper format, unless absolutely.
- Ensure security: Be sure discovery items produced are kept in a secure repository. This will usually be the ADR administrator’s portal. If not, be sure to use an encrypted, password-protected repository..
- Joint exhibits: Suggest to the parties that there be a compendium of joint exhibits do avoid duplication. I usually cover this at the preliminary hearing.
D) DeAndra Roaché –
- Set/Limit the number of document exchange requests each party can request of the other party.
- Address how to deal with video or other physical evidence.
- Set timelines for production and exchange of documents.
- Set deadlines for Dispositive and Written motions in the scheduling order.
- Use a file-sharing application for parties to deposit all documentary evidence marked as the relevant exhibit and/or require exhibit binders to be sent to the arbitrator in advance.
- When working with a large group, have those not speaking turn off their video and all to close extra open items or programs on their computers to conserve bandwidth.
E) Stacie Strong –
- Be realistic and ask for the bare minimum – expansive requests are inappropriate in arbitration and seldom yield useful information
- Submit relatively few documents to the arbitrators – empirical evidence suggests arbitrators are unnecessarily deluged with materials, adding to cost and creating inefficiencies (see Legal Reasoning Across Commercial DIsputes (OUP 2020))
- Consider asking for e-materials only to minimize the need to review hard copy documents in a time when working in person is difficult
Stay tuned for more Arbitration TNT by Prof. Amy Schmitz coming your way next week…..