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Discovery in Employment Arbitration: Principles & Practice of the “Due Process” Protocol

As set forth in the Introduction to the  Employment Arbitration Rules of the American Arbitration Association (AAA), AAA has incorporated into its employment arbitration rules a “due process” protocol to “ensure fairness and equity” in the resolution of workplace disputes; other arbitration service providers have analogous provisions.  One of the components of the AAA due process protocol is AAA’s Rule 9 provision with respect to discovery.  Rule 9 provides:

“The arbitrator shall have the authority to order such discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration.”

The AAA Case Manager also notifies the parties, prior to the initial arbitration management conference, that the neutral “will control the exchange of information to help  eliminate lengthy and unnecessary discovery…”  Following is an “arbitrator’s-eye view” of the lay of discovery land in employment arbitration.

Discovery Plan:

It is beneficial for the parties to discuss discovery prior to the initial management conference and to agree upon general time frames for the conduct of their respective discovery as well as terms of a stipulated protective order necessary for exchange of confidential documents and records.  The parties’ drafting of a discovery plan helps expedite the process of scheduling the merits hearing at the initial arbitration management conference and sets a foundation for future mutual cooperation in the discovery process.  Sometimes such discussions may precipitate the recognition of disputes concerning the proper manner and bounds of discovery which may then be addressed promptly by the arbitrator, being guided by the precepts set forth above, i.e., to allow such discovery as the arbitrator deems “necessary to full and fair exploration of the issues in dispute consistent with the expedited nature of arbitration.”[1]

Propounding:

Attorneys should take the time to individually craft their document production requests to ensure that such requests efficiently target exactly what is needed to prosecute the case, rather than hastily adapt form requests used in other cases likely not “on all fours” with the case in question.  Then, when challenged as “not reasonably calculated to lead to discovery of admissible evidence,” overbroad, unduly burdensome and repetitive, etc., etc., upon review, it will be evident to the arbitrator that the discovery was carefully promulgated to the contours of the existing case and the arbitrator will more likely conclude that the discovery is necessary and consistent with the expedited nature of arbitration.  Otherwise, the arbitrator may come to the opposite conclusion and start cutting.

Responding:

Just as the use of boilerplate production requests is verboten in employment arbitration, so also is the use of boilerplate objections which demonstrates to the arbitrator that the attorney has failed to individually consider and respond to the requests.  In one case a motion to compel responses and production, and for sanctions, resulted, where the “responding” party had requested, and received, from the propounder, two separate extensions of time to respond on the stated premise that the persons required to identify and locate the requested records were on vacation, etc., etc.  On the due date, however, seemingly for dilatory purposes, boilerplate objections were served, without production of any records and without express agreement to produce any records (not even personnel file, pay records, i.e., items clearly required to be produced.)

Resolving Discovery Disputes:

A discovery “motion” in arbitration is simply the minimum oral and/or written effort essential to clearly convey to the arbitrator and the opposing part(ies) the issues and the parties’ positions on the issues, eliminating any civil court “makework.”  Oftentimes the issues may simply be stated before the arbitrator in teleconference; other times, dependent upon the number and/or complexity and/or “stakes” of the issues, a short “letter brief” may assist the arbitrator to prepare for “oral argument” in teleconference.  The arbitrator should be available, if necessary, “outside” normal business hours, upon short notice, to facilitate prompt resolution of such disputes in order not to jeopardize the hearing schedule, nor prejudice a party in prehearing preparation.

Conclusions:

The “long and the short” of “best discovery practices” in employment arbitration are reasonableness, diligence, and avoidance of any vestige of civil litigation “gamesmanship.”  By its very nature, arbitral practice commands counsel to the highest standards of professional practice and civility.

 

 

 

[1] The California Supreme Court in its seminal Armendariz decision ruled that provision for reasonable discovery was essential as a matter of public policy to the enforcement of a predispute mandatory employment arbitration agreement.   Some commentators have suggested that recent  U.S. Supreme Court jurisprudence has placed the Armendariz fairness protocols in jeopardy.