Arbitrators’ goals in managing discovery are to (1) ensure an efficient and fundamentally fair hearing and (2) afford each party a reasonable opportunity to obtain material evidence relating to its claims or defenses.
A. Arbitrators’ Critical Role in Reasonably Containing Discovery
Prior to adoption of the Federal Civil Discovery Rules, civil litigation generally was conducted without benefit of discovery. Each party relied on documents in its possession and testimony given by witnesses at trial. Cross-examination was an art form. By the 1930s, however, many states had begun to enact discovery procedures giving counsel a broader basis for determining the facts in a given case.
The Federal Rules of Civil Procedure, enacted in 1938, include discovery rules intended to prevent surprise at trial. Although these rules in many respects have achieved their purpose, the rules often are abused in litigation. A plaintiff can file an action without significant factual support and hope to find the necessary facts through discovery. A wealthier party can force a less affluent opponent to spend itself into submission by engaging in extensive and expensive discovery. Lawyers concerned about malpractice exposure may feel obligated to leave no stone unturned in their use of discovery, protecting themselves at the expense of their clients. Even attorneys who do not fear malpractice claims may believe their ethical duty of zealous advocacy demands an exhaustive search for any evidence that might possibly support their client’s position.