“Hard” Tools for Controlling Discovery Burdens in Arbitration

Oct 3, 2018 | ALI CLE Legal Journals, Lawyering Skills, Litigation

Arbitration (and American arbitration in particular) has received increasing criticism, based largely on the contention that arbitration too closely resembles conventional litigation, producing undue burden and costs. Chief among the criticisms is the view that discovery (particularly discovery of electronic information, or “e-discovery”) is largely uncontrolled, undermining efforts to promote arbitration as a speedy and economical alternative to litigation. Solutions, in response to the criticisms, abound. One popular view is that better education of neutrals about the demands of modern discovery, and entreaties to neutrals to manage discovery processes more closely, can solve this problem, through a system where arbitrators work with the parties to “right-size” the proceedings, and closely monitor developments in the case, to avoid a “runaway” process, sometimes referred to as “muscular arbitration.” This approach largely mirrors the “active case manager” model recommended for judges facing similar problems of discovery control.

Central to the active case management approach is a concern for “proportionality,” i.e., that the scope and form of discovery should be “proportional to the stakes and issues involved in the case[.]” That proportionality concern is already a central focus of arbitration-sponsoring institutions. Yet, budgeting for e-discovery projects is notoriously elusive, and the ability of parties to determine, in advance, precisely what information they have that may be relevant to the dispute means that a “case manager” (arbitrator or judge) may have difficulty doing much more than encouraging parties to consider their obligation to engage in “proportionate” discovery, and (when and if a party complains about the burdens of discovery) adopting specific case management techniques to control undue burdens. Proportionality, moreover, is a rather old, but ill-defined concept, which has often eluded parties in the heat of battle.

The admonition that arbitrators should pay attention to proportionality is generally “soft” on the parties (and their counsel), meaning that the case manager arbitrator does not place any immediate limitations on discovery, until the parties have had a chance to “meet and confer,” and the arbitrator generally does not constrain the discovery process unless one of the parties specifically requests assistance. By contrast, there are “hard” tools for limiting discovery, which can be imposed, from the outset of a case, without extensive input from the parties, and on a basis that does not depend on a detailed assessment of proportionality issues. In the arbitration context, these hard tools may be particularly useful. This Article briefly outlines some of the “hard” tools for discovery management, and suggests some reasons why such tools may be useful in arbitration.

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Steven-C-BennettSTEVEN C. BENNETT is a Partner with Park Jensen Bennett LLP in New York City. He is also an Adjunct Professor (E-discovery Procedure) at Hofstra Law School. The views expressed are solely those of the author, and should not be attributed to the author’s firm or its clients. An earlier version of this article was published in Mealey’s International Arbitration Report.