Begins a new arbitration report issued by the New York State Bar Association (Report on Arbitration Discovery in Domestic Commercial Cases, June 2009):Arbitration has been in use for millennia, and has long been on the scene in the United States. George Washington’s will had an arbitration clause, and some labor disputes made use of arbitration beginning in the early 1800s.
In addition to the following guidelines, the report also includes factors an arbitrator should consider in determining the appropriate scope of discovery, including the nature of the dispute, the characteristics of the parties, the terms of their agreement, the relevance of requested discovery and the parties' reasonable need for it, and matters of privilege and confidentiality.
Arbitration Discovery Guidelines (as printed in the report announcement):
- Arbitrators must exercise judgment to produce a discovery regimen that is appropriate to the given case. The ground rules should be clearly established in the period immediately following the initiation of the arbitration. The arbitrator should promptly study the facts and the issues and be prepared to preside over the early stages of the case in a way that will lead to an expeditious and fair process.
- While there is no universal objective standard for the appropriate scope of e-discovery, an early order setting reasonable bounds for e-discovery can be an important first step in limiting such discovery in a large number of cases.
- The arbitrator must maintain control of the proceedings and move the case forward to an orderly and timely conclusion. The arbitrator has many tools that can be used to ensure fairness and prevent disruption where one side may withhold its cooperation. Those tools may include, for example, the making of adverse factual inferences, the preclusion of proof, and cost allocation.
- It is essential that arbitration discovery disputes be resolved promptly and efficiently because exhaustive discovery motions unduly extend discovery and significantly add to the cost of the arbitration.
The NYSBA's Dispute Resolution Section performed research, conducted interviews with members of the arbitration bar and representatives of arbitration organizations, and reviewed other literature on the subject of arbitration discovery and work done by JAMS; the International Centre for Dispute Resolution/American Arbitration Association; the Chartered Institute of Arbitrators; the CPR International Institute for Conflict Prevention and Resolution; the American College of Trial Lawyers; the International Bar Association; and the College of Commercial Arbitrators.
