Discovery - Chapter 8 - The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 2nd Edition
R. Doak Bishop, Esq., Partner, King & Spalding, Houston, Texas
M. Scott Donahey, Esq., Independent Arbitrator and Mediator, Palo Alto, California
James W. Durham, Esq., Independent Arbitrator & Mediator, Media, Pennsylvania
David M. Heilbron, Esq., Bingham McCutchen, San Francisco, California
Louise A. LaMothe, Esq., Independent Arbitrator and Mediator, Santa Barbara, California
Deborah Rothman, Esq., Independent Arbitrator & Mediator, Los Angeles, California
John M. Seitman, Esq., JAMS, Del Mar, California
Stanley P. Sklar, Esq., Independent Arbitrator & Mediator, Chicago, Illinois
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 the adoption of the Federal Civil Discovery Rules, civil litigation was generally conducted without benefit of discovery. Each party to the litigation relied on the documents in its possession and the testimony given by its witnesses at trial. Cross-examination, then, was indeed 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.