By Stephen A. Hilger, Esq.

This is Part 9 in a 20-part series of articles dealing with issues of arbitration in the construction industry.

One of the most expensive components of litigation is discovery. Discovery in court can go on seemingly interminably with multiple depositions of multiple individuals, intense document production, forensic examination, multiple layers of expert witnesses, and the like. That process is time consuming and can be very expensive. Arbitration is intended to streamline that process although in some instances, discovery can become just as lengthy and expensive as litigation.

Therefore, you need to determine, through your arbitration agreement, to what extent discovery will be permissible. Regarding depositions, the rules of the American Arbitration Association do not specifically provide for the use of depositions. However, since most arbitrators are lawyers, and most litigators are accustomed to taking depositions, arbitrators will typically allow some limited use of depositions. If disputed, the decision whether to permit depositions must be made by the arbitrator during the preliminary proceedings. If the parties agree to allow depositions, generally speaking, the arbitrator will not interfere with that decision or that agreement.

Regarding document production, you should determine in your arbitration agreement the level of document production, whether native files will be produced, the extent of electronic discovery, the scope of discovery, and a variety of other issues. If you allow the American Arbitration Association rules to govern what discovery will take place, there will only be a limited document exchange for information specifically relevant to the case, as generally determined by the litigator in possession of the documents. Without a specific reference in your arbitration clause about discovery of documents, you may be left with very little assistance.

One often-ignored method of discovery when dealing with public entities is the Freedom of Information Act. Documents can be produced from a public entity, and to some extent private entities that work for public entities, utilizing a Freedom of Information Act request.

Best practices include tightening up your arbitration clause which will substantially reduce discovery disputes once the arbitration process begins. This would involve identifying limited discovery regarding documents and witnesses, whether electronic discovery will be permitted and to what extent, how many depositions will be allowed per side, time limits on depositions (usually 7 hours per fact witness), as well as any other discovery issues you could anticipate based upon the unique nature of your project.

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