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the parties. Because Section 17(c) is waivable under Section 4 | | (a), the provision is intended to encourage parties to negotiate | | their own discovery procedures. Section 17(d) establishes the | | authority of the arbitrator to oversee the prehearing process | | and enforce discovery-related orders in the same manner as would | | occur in a civil action, thereby minimizing the involvement of | | (and resort of the parties to) the courts during the arbitral | | discovery process. |
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| | | At the same time, it should be clear that in many arbitrations | | discovery is unnecessary and that the discovery contemplated | | by Section 17(c) and (d) is not coextensive with that which | | occurs in the course of civil litigation under federal or | | state rules of civil procedure. Although Section 17(c) allows | | an arbitrator to permit discovery so that parties can obtain | | necessary information, the intent of the language is to limit | | that discovery by considerations of fairness, efficiency, and | | cost. Because Section 17(c) is subject to the parties' | | arbitration agreement, they can decide to eliminate or limit | | discovery as best suits their needs. However, the default | | standard of Section 17(c) is meant to discourage most forms of | | discovery in arbitration. |
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| | | 4. The simplified, straightforward approach to discovery | | reflected in Section 17(c)-(e) is premised on the affirmative | | duty of the parties to cooperate in the prompt and efficient | | completion of discovery. The standard for decision in | | particular cases is left to the arbitrator. The intent of | | Section 17, similar to Section 8(b) which allows arbitrators | | to issue provisional remedies, is to grant arbitrators the | | power and flexibility to ensure that the discovery process is | | fair and expeditious. |
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| | | 5. In Section 17 most of the references involve "parties to | | the arbitration proceeding." However, sometimes arbitrations | | involve outside, third parties who may be required to give | | testimony or produce documents. Section 17(c) provides that | | the arbitrator should take the interests of such "affected | | persons" into account in determining whether and to what | | extent discovery is appropriate. Section 17(b) has been | | broadened so that a "witness" who is not a party can request | | the arbitrator to allow that person's testimony to be | | presented at the hearing by deposition if that person is | | unable to attend the hearing. |
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| | | 6. Section 17(d) explicitly states that if an arbitrator | | allows discovery, the arbitrator has the authority to issue | | subpoenas for a discovery proceeding such as a deposition. | | This issue has become particularly important as a result of | | the holding in | | COMSAT Corp. v. National Science Foundation, 190 F.3d 269 (4th | | Cir. 1999), in which the Fourth Circuit Court of Appeals |
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