Discovery - Chapter 8 - The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 2nd Edition

Author(s):

Raymond Doak Bishop

M. Scott Donahey

James W. Durham

David M. Heilbron

Louise A. LaMothe

Deborah Rothman

John M. Seitman

Stanley P. Sklar

Page Count:

25 pages

Media Description:

PDF from "The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 2nd Edition"

Published:

October, 2010

Jurisdictions:

United States

Practice Areas:

Authority of the Arbitral Tribunal,

Practice & Procedure,

Discovery,

Electronic Documents,

Experts

Author Detail:

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

PDF242.42 KB

$40.00

Description:

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.

I. INTRODUCTION

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.

The Federal Rules of Civil Procedure, enacted in 1938, included discovery rules intended to prevent surprise at trial. Although these rules in many respects have achieved their purpose, the rules are often 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 that their ethical duty of zealous advocacy demands an exhaustive search for any evidence that might possibly support their client’s position.

Table of Contents:

I. INTRODUCTION A. Arbitrator’s Critical Role in Reasonably Containing Discovery B. Arbitrator Tools for Reasonably Containing Discovery II. DOCUMENT PRODUCTION A. Applicable Arbitration Rules B. Documents on which Party Intends to Rely C. Document Requests D. Management of eDiscovery 1. Introduction 2. Overview of How ESI Differs from Traditional Paper Storage 3. Guidance for Management of the eDiscovery Process 4. Conclusion E. Duty to Supplement F. Claims of Privilege III. DEPOSITIONS OF PARTY WITNESSES A. Arbitrators’ Authority B. Limiting Discovery Depositions IV. INTERROGATORIES AND REQUESTS FOR ADMISSIONS V. DISCOVERY OF EXPERT WITNESSES A. Discovery of Experts in General B. Scheduling Discovery of Expert Witnesses VI. DISCOVERY FROM THIRD PARTIES A. Extent of Arbitrators’ Authority to Issue Third-Party Discovery Subpoenas B. Form and Issuance of Discovery Subpoenas C. Enforcement of Discovery Subpoenas VII. SITE INSPECTIONS VIII. CONFIDENTIALITY AND PROTECTION OF PROPRIETARY INFORMATION IX. DISCOVERY DISPUTES A. Encouraging Parties to Resolve Discovery Disputes B. Formal Resolution of Discovery Disputes X. DISCOVERY AS A LITMUS TEST FOR A SUCCESSFUL ARBITRATION