Division 1: Litigation and Dispute Resolution
This was one of the handouts given during Division 1’s lunch program on Discovery in Arbitration. Special thanks to our speakers: Kelsey Funes, Phelps Dunbar LLP; John Bulman, Pierce Atwood, LLP; Nancy Wiegers Greenwald, Construction Dispute Solutions, LLP; and Linda Turteltaub, Skanska USA Building Inc. Additional materials relating to the presentation have been posted in Division 1’s Dropbox. Please e-mail Division 1 Chair, Nick Holmes, firstname.lastname@example.org, to receive an invitation to the Dropbox.
The Dirty Dozen:
Best Practices for Discovery in Arbitration
1. Conduct discovery in stages or phases.
2. Use the neutral’s help to create a discovery blueprint.
3. Focus on the relevant facts early. Conduct early witness interviews and think about what you really need to present the case to the arbitrator(s).
4. Require each party with an affirmative claim to specify their damages (category and amount) in the early stages of the case.
5. Use negotiated discovery protocols (search terms; custodians; deposition time limits)
6. Narrow the issues to be arbitrated. Resist the tendency to tell the entire story of the construction project. Focus on the matters in dispute.
7. Select appropriate arbitrators. Select arbitrators with appropriate subject matter and process expertise.
8. Make the most of your preliminary hearing with the arbitrator by having at least a preliminary plan for discovery. Know the schedules of the key participants (including key witnesses) and be ready to commit to a discovery schedule and a hearing date.
9. Include flow-down provisions in your contract to be sure all of the parties can be brought into the arbitration.
10. Work with your client and opposing counsel to craft a written discovery plan before the first call with the arbitrator.
11. Consider allowing direct testimony by written submission.
12. Submit a form of award to arbitrator with post-hearing brief.
Top Five Things to Avoid
1. Don’t – Provide for the Federal Rules of Civil Procedure or other state procedural laws to apply to discovery in an arbitration.
2. Don’t – Provide for judicial review of errors of fact or law. (But, consider the AAA and JAMS appellate process if the case warrants it).
3. Don’t allow motions in limine.
4. Don’t use four witnesses or documents when one will do.
5. Don’t engage in petty discovery disputes.