The service provider you choose will control how much or how little discovery may be conducted in the arbitration itself. ADR Services permits the most pre-arbitration discovery. JAMS permits a moderate amount of pre-arbitration discovery. AAA permits the least amount of pre-arbitration discovery.
“In the absence of agreement, there generally is no right to discovery in arbitration proceedings under either state or federal law.” Warren Knight, Richard Chernick, Catherine L. Flynn, & Martin Quinn, California Practice Guide: Alternative Dispute Resolution, s 5:385 (Rutter Guide eds. 2018). There are, however, a few exceptions.
Under California law “depositions may be taken and discovery obtained in arbitration,” Cal. Civ. Proc. Code § 1283.05, when the “dispute . . . aris[es] out of or result[s] from any injury to, or death of, a person caused by the wrongful act or neglect of another” or when the parties otherwise agree. Id. § 1283.1.
Under all three Arbitration Programs, ADR Services, JAMS, and AAA, the Parties are required to exchange documents and engage in a pre-trial disclosure of documents, experts, lay witnesses, and theory of the case in the form of a trial brief. These requirements are echoed in the Code which requires the exchange of a witness list and disclosure of documents to be used at arbitration for controversies involving more than $50,000. See Cal. Civ. Proc. Code s 1282.2.
Additional discovery beyond this, varies from program to program.
Under ADR Services Arbitration Rules, “The arbitrator shall have the authority to order such discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration.” ADR Servs. Arb. Rules 21.
Under the JAMS Comprehensive Arbitration Rules & Procedures, “Each Party may take one deposition of an opposing Party or of one individual under the control of the opposing Party.” JAMS Comp. Arb. Rules 17(b). “The necessity of additional depositions shall be determined by the Arbitrator . . . .” Id. These rules do not explicitly imbue the arbitrator with authority to permit or compel additional written discovery.
Under AAA Commercial Arbitration Rules and Mediation Procedures, the Arbitrator has the authority to compel further production of documents. AAA Commercial Arb. Rules 22. But the arbitrator is given no explicit authority to permit additional discovery or compel discovery beyond production of documents. Id. Rule 23. These rules do not explicitly contemplate depositions.
Unless your arbitration agreement provides otherwise, virtually all arbitrators have the authority to order additional discovery or limit the discovery sought. But as a starting point, some ADR service providers allow for and contemplate more discovery in arbitration than others. Whether you want a lot or little discovery can be controlled, to some extent, by choosing the right provider in the first place.
Sometimes you have to compel the opposition's response to discovery. But before you can move to compel, you are required to "meet and confer." If you do the "meet and confer" wrong, your discovery motion will be doomed.
A common area of abuse occurs when attorneys instruct their clients to not answer a deposition question. Instructions to refuse to answer should occur only in response to questions implicating a privilege. All other instructions to not answer questions for relevance, for hearsay, or even for “harassment,” are improper.
The firm is pleased to report that in a hard fought matter spanning eight years, after a trial, and after four years on appeal, the California Court of Appeal ruled in favor of Tong Robbins’ clients, holding, in plain language, “We agree with plaintiffs.”
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