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Distinguishing Discovery

Posted on April 23, 2014 by Steve Shapiro

 

discovery

In the arbitration context, discovery requests vary greatly, none wider than the U.S. and European practice areas. At its heart, European practitioners have sculpted a discovery and arbitral process that is generally quicker and less expensive than US models.

The European practice around discovery is focused on document requests and in turn careful analysis that drives the order of witnesses, cross examination, and demonstrative proof. The current US model is felt to more closely resemble litigation. Although more arbitrators are becoming skilled in attempting to reduce the scope of discovery without compromising the quality of the hearing preparation.

How can US practitioners achieve more of a balance between targeted discovery, effective hearing preparation, while also permitting the correct mix of deposition testimony is all of our test as practitioners, advocates and clients?

One view is that party self – determination still has to govern the discovery schedule. I agree.

At the same time, traditional arbitrated cases and procedures have gotten more complex and parties are able to design approaches that meet the needs of their case – - not because arbitrators are not flexing their muscles and pushing the parties into a more streamlined approach, but because the nature and complexity of the cases requires a comprehensive approach to setting the right course and arbitral procedure.

Why not have depositions if it serves the fact finding and efficiency of the hearings, why not have expert reports that provide a thorough explanation of the theories on the case, and why not utilize pre and post hearing briefs if it supports an educational exchange that is crucial for a fair and honest decision?

Some American protocols such as JAMS Streamlined Arbitration Rules & Procedures, and The CPR Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration provide an excellent resource to drafters who can help shape any future discovery rules in subsequent claims.

ICDR Guidelines provide that an arbitrator can inquire into a discovery request made by one party by understanding the value and need behind the request, and can order the requesting party to pay the responding party for all or part of their expected costs in responding.

Is this the future of discovery in the US?

There will be greater discussion to follow on questions of Motions, Expert Witnesses, and Direct Testimony.

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