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February 10, 2015 by AmyN

This is the third article in the “Employment Arbitrations – Getting Back to Basics” series. In the last article, we discussed the Case Management Conference. Here, our focus in on discovery in employment law arbitrations.

As usual, the starting point is the Arbitration Agreement and the applicable rules. Arbitration agreements can define the scope of discovery subject to the requirements in Armendariz v. Foundation Health Psychare Services, Inc. (2000) 24 Cal.4th 83 (“We recognize, of course, that a limitation on discovery is one important component of the simplicity, informality, and expedition of arbitration. The arbitrator and reviewing court must balance this desirable simplicity with the requirements of the FEHA in determining the appropriate discovery, absent more specific statutory or contractual provisions.”

Discovery in arbitration under California law is generally governed by Code of Civil Procedure ¶1283.05 as follows:

  1. Discovery commences after the appointment of the arbitrator(s), and all discovery under CCP ¶010, is allowed. However, subdivision (e) requires that depositions may not be taken without leave of the arbitrator.
  1. The arbitrator, and not the court, has the power to enforce discovery and the remedies provided in the Civil Discovery Act. (Any monetary sanctions award is enforceable by the court, a confirmation hearing, as allowed by the California Arbitration Act)

CCP ¶1283.1 subdivision (a) provides that the discovery requirements are, by operation of law, made part of all arbitration agreements involving any injury to, or death of, a person caused by the wrongful act or neglect of another. Subdivision (b) allows ¶1283.05 to be made a part of contracts not involving personal injury if the parties agree.

When I serve as an Arbitrator, I try to expedite discovery as much as possible while being mindful of the need to balance the need for discovery with the goals of arbitration. For example, I will order the parties to “exchange documents and witness information each party may use to support its claims or defenses (unless the use would be solely for impeachment) and contact information for each individual likely to have discoverable information and the subjects of that information.” This is the same requirement imposed by FRCP 26.

I will also order the parties to meet and confer about deposition scheduling soon after the initial information exchange and order that “Depositions of any witness listed on the initial disclosures must be calendared (not taken) prior to [an assigned date]. A party desiring to take any additional depositions must show good cause.”

As for written discovery, my standard order reads: “While interrogatories and RFAs are permitted, the Arbitrator discourages their use unless they are, demonstrably, the best way to obtain the desired information. For example, a party seeking admission of certain facts or the authenticity of documents should first seek a stipulation. If a party is unable to obtain requested information through a stipulation or informal request and desires to serve formal discovery, that party shall follow the procedures in “Discovery Disputes” below.

My procedure for discovery disputes is as follows: “Any unresolved discovery disputes shall be brought to the attention of the Case Manager who shall set a hearing date. The correspondence to the Case Manager should be a joint submission briefly describing the nature of the dispute and summarizing each party’s position. The Arbitrator may order additional briefing if, in his discretion, he concludes additional briefing would materially assist him in resolving the dispute. Otherwise he will rule based on the joint submission and oral argument, if any.”

In general, counsel should be mindful that arbitration is different from civil litigation and should not expect virtually unconstrained discovery permitted by most judges.

Michael H. Leb is a an ARC neutral who mediates and arbitrates all types of private and public sector disputes with special emphasis on labor and employment law matters.


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