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June 11, 2009

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 process.
• 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 of cases.
• 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.

To view the Dispute Resolution Section’s report visit: www.nysba.org/drreport.

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 solutions.

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.

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