Chapter Eight: Discovery - CCA Guide to Best Practices in Commercial Arbitration - Fourth Edition
Editor in Chief James M. Gaitis is a long-standing member of the Texas and Montana state bars, and a former longtime member of the Oklahoma state bar, who, since 1990, has specialized in serving as an arbitrator in complex commercial and oil & gas/energy arbitrations. Mr. Gaitis is the former Director (and Principal Research and Teaching Fellow) of the International Dispute Resolution Programme at the Centre for Energy, Petroleum & Mineral Law and Policy (CEPMLP), University of Dundee, Scotland, where he designed and taught classes on international dispute resolution and advocacy in international oil & gas arbitration to LLM students and professionals. In private practice, he served variously as lead trial counsel, in-house counsel, and special counsel for a diverse array of companies, individuals, and other entities involved in the domestic and international oil & gas industries. He is listed on a broad variety of international and domestic arbitration panels, including the AAA National Energy Panel, Construction Panel, Merger & Acquisitions Panels, and Large, Complex Case Panel; the ICDR’s Panel of Arbitrators and the ICDR’s prestigious Energy Arbitrators List; the British Columbia International Commercial Arbitration Centre; and the CPR’s Oil & Gas/Energy Panel and Cross-Border Panel. He frequently serves as a chair, party-appointed arbitrator, emergency arbitrator, and list-appointed arbitrator in cases involving all aspects of the oil & gas industry, as well as in commercial cases relating to such matters as manufacturing, construction lending, engineering, asset sales, business torts, and real property. Many of his arbitrations, which have included claims in excess of $1 billion, have involved Fortune 100 and Oil & Gas Journal Top 50 companies, as well as national oil companies and international oil companies.
A Fellow of the College of Commercial Arbitrators (2004–present) and a Fellow and Chartered Arbitrator of the Chartered Institute of Arbitrators (2003–present), Mr. Gaitis is a frequently invited speaker and lecturer, has testified in district court proceedings as an expert on arbitrator disclosures and ethics, and is the author of numerous articles relating to arbitration law, several of which have been cited repeatedly to the United States Supreme Court, various federal district courts and federal courts of appeal, and various other courts, such as the Supreme Courts of Texas and Puerto Rico. In 2006, 2010, and 2013, he respectively served first as an Editor and then repeatedly as Editor in Chief of the first, second, and third editions of The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration. He also is the Editor of, and a contributing author to, The Leading Practitioners’ Guide to International Oil & Gas Arbitration (Juris 2015) and serves on the Board of Editors of the Journal of World Energy Law & Business (OUP/AIPN). He is a graduate of the University of Notre Dame (BA 1976) and the University of Iowa College of Law (JD 1978), where he served as a Note & Comment Editor on The Iowa Law Review.
Editor John (Jay) McCauley is an arbitrator, mediator, and arbitration consultant. He is a Fellow of the Chartered Institute of Arbitrators (FCIArb) and of the College of Commercial Arbitrators. He is an honors graduate of Harvard Law School and a former partner of a large, international law firm, where he litigated a broad range of matters, including security fraud class actions, corporate governance, insurance and reinsurance coverage, real property, construction, business torts, intellectual property, healthcare, and employment. He has taught arbitration law as an Adjunct Professor in several law schools, including Pepperdine, Loyola, Creighton, and University of Missouri–Kansas City, and has made CLE presentations on ADR topics throughout the world, including, most recently, at the USC/JAMS Advanced Arbitration Institute, and at training programs sponsored by the AAA concentrating on more challenging topics such as arbitrability and jurisdiction, federal preemption, the power to summon nonparties, the preclusive effect of arbitral awards, the role of law in arbitral deliberations, and presentation of damages in the arbitral forum.
Mr. McCauley has been continuously listed for the past nine years as a California Super Lawyer, and for the past eight years, he has been included in Best Lawyers in America in the field of ADR. He has been a commercial arbitrator on the national roster of the AAA since 1998, where he serves on the Large, Complex Case; Commercial; Real Property and Construction; Employment; Healthcare; and Class Action Panels, as well as on the roster of the ICDR. He is also on the roster of neutrals for Judicate West and on the “senior arbitrators” panel for USA&M. In the past decade, he has been appointed to serve as an arbitrator on more than 180 significant matters, including multiple major matters ranging in value from $10 million to more than $100 million
John M. Barkett, Miami, Florida
R. Doak Bishop, Houston, Texas
M. Scott Donahey, Palo Alto, California
James W. Durham, Media, Pennsylvania
George Gluck, New York, New York
Marc J. Goldstein, New York, New York
David M. Heilbron, San Francisco, Californai
John R. Holsinger, Hackensack, New Jersey
Louise A. LaMothe, Santa Barbara, California
Kathleen A. Roberts, New York, New York
Deborah Rothman, Los Angeles, California
John M. Seitman, Del Mar, California
Stanley P. Sklar, Northbrook, Illinois
R. Wayne Thorpe, Atlanta, Georgia
Robert P. Wax, Palm Beach Gardens, Florida
Arbitrators’ goals in managing discovery are to (1) comply with the parties’ arbitration agreement and any governing rules and (2) ensure an efficient and fundamentally fair arbitration.
A. Defining the Arbitrators’ Authority to Grant and Limit the Scope of Discovery in Arbitration
Before they purport to determine what discovery, if any, to permit, arbitrators must determine the scope of their authority to grant or deny discovery.
Decisions regarding the manner and degree to which discovery is permitted in any given arbitration involve a complex assessment by arbitrators of the scope of their authority to control discovery while taking into account considerations relating to cost and fairness. When arbitrators assess what discovery, if any, to permit, they must first examine the parties’ arbitration agreement and determine whether the parties have imposed contractual limitations on discovery or granted the parties the right to certain forms of discovery. Many arbitration agreements now address that subject. Some provide for broad discovery—for example, by adopting the FRCP. Some permit depositions. Some allow for only narrowly defined discovery or even prohibit discovery. Arbitrators must be aware of any such contractual rights to, or constraints on, discovery before addressing the topic of discovery with the parties.
More often than not, the parties’ arbitration agreement will incorporate institutional arbitration rules that govern the arbitration proceeding. All contemporary institutional rules now address, to some degree, the subject of discovery. With the exceptions noted in this chapter, they universally give the arbitrator authority to control the amount and nature of discovery to be permitted. Arbitrators must be familiar with those provisions of the governing rules that address the subject of discovery and should ensure that their decisions regarding discovery conform to the rules.