STATE BAR’S DISPUTE RESOLUTION SECTION ISSUES
NEW REPORT ON USE OF DISCOVERY IN ARBITRATION
Report addresses problem of controlling discovery
in domestic commercial arbitration
ALBANY – A new report issued by the New York State Bar
Association’s Dispute Resolution Section sets forth Precepts that
will help arbitrators handle discovery in domestic commercial cases in a
cost-effective and fair manner, consistent with the expectation of the
parties who select the arbitration process. The Report On Arbitration
Discovery in Domestic Commercial Cases can be a significant tool
particularly as the use of arbitration grows for large, complex
commercial cases, as well as smaller cases.
“The Dispute Resolution Section’s report is a
particularly exciting development for the still growing field of
alternative dispute resolution. I am deeply grateful for, and proud of,
the work of the drafting committee – Carroll Neesemann, Sherman
Kahn, and John Wilkinson – for creating what will be an essential
guide to arbitrators in orchestrating discovery and making discovery
determinations in domestic commercial arbitration,” said Simeon H.
Baum of New York (Resolve Mediation Services, Inc.), the first, and
immediate past, chair of the Dispute Resolution Section.
“The State Bar has a longstanding tradition of responding
to the critical issues that affect our profession. The approval of this
report will go a long way toward helping arbitrators resolve future
discovery disputes in a manner balancing the values of efficiency,
responsiveness to party expectations, procedural due process, and
fairness. The result should greatly benefit practitioners, parties, and
administrators – in short all users of the arbitration
process,” he concluded.
At the request of Immediate Past State Bar President Bernice K.
Leber of New York (Arent Fox LLP), the Dispute Resolution Section
studied the use of arbitration in domestic commercial matters. The
section performed research, conducted interviews with members of the
arbitration bar and representatives of arbitration organizations, and
reviewed work done by such organizations and other literature on the
subject of arbitration discovery.
Among the many
arbitration discovery Precepts contained in the report are:
Arbitrators must exercise
judgment to produce a discovery regimen that is specific and appropriate
to the given case.
It is important that ground
rules governing an arbitration 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 fully prepared to
preside effectively over the early, formative stages of the case in a
way that will ultimately lead to an expeditious, cost-effective and fair
While there can be no
objective standard for the appropriate scope of e-discovery in all
cases, an early order containing language along the following lines can
be an important first step in limiting such discovery in a large number
It is also essential for the
arbitrator to maintain control of the proceedings and to move the case
forward to an orderly and timely conclusion. The arbitrator has many
tools that can be used both to ensure the fairness of the proceedings
and to prevent disruption in the rare case where one side may withhold
its cooperation. Those tools may include, for example, the making of
adverse factual inferences against a party that has refused to come
forward with required evidentiary materials on an important issue, the
preclusion of proof, and/or the allocation of costs.
It is essential that
arbitration discovery disputes be resolved promptly and efficiently
because exhaustive discovery motions can unduly extend the discovery
period and significantly add to the cost of the arbitration.
In addition to the Precepts, 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.
Established in 2008 as the 24th Section of the New York State Bar
Association, the Dispute Resolution Section provides a forum for
improving the processes and the understanding of dispute resolution
alternatives, for enhancing the proficiency of practitioners, and for
increasing the knowledge and availability of party-selected
The 76,000-member New York State Bar Association is the official
statewide organization of lawyers in New York and the largest voluntary
state bar association in the nation. Founded in 1876, State Bar programs
and activities have continuously served the public and improved the
justice system for more than 130 years.
NEW YORK STATE BAR ASSOCIATION, ONE ELK STREET, ALBANY, NY 12207 PH: (518) 463-3200 SECURE FX: (518) 463-5993