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Employment cases in arbitration, and the emerging area of class action arbitrations, have been a source of tension in part because of conflicting philosophies about the nature of arbitration. One school of thought regards arbitration as a system which should not expand into another form of costly litigation. Arbitration should, instead, be used to reduce litigation expenses. The primary mechanism to reduce such expenses is to control discovery. The importation of statutory rights litigation into the arbitration forum, however, has resulted in a competing school of thought. When statutory rights are at issue, and arbitration has not been the voluntary choice of the individual forced to use the system, the individual can see no principled reason why his or her rights should take second place to the mantra of efficiency. Particularly because proof of discriminatory intent is almost always based on circumstantial evidence, and because the company possesses the information necessary for the individual to prevail, depositions in particular are an essential requirement if the case will be proved. Restrictive discovery in these cases can be responsible for significant injustices. Class action litigation may be one area where both parties want significant deposition rights. As in the statutory rights arena, class action representatives must prove the case through company records and often company witnesses. On the other hand, the defendant company desires the depositions of numerous alleged class members, particularly to attempt to show that one or more of the requirements for class certification does not exist. An arbitrator restricting the desired discovery would make both parties unhappy. The American Arbitration Association, in its employment rules, has not taken a firm position on discovery rights in statutory or class action cases. Its discovery rule provides “[T]he 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.” JAMS, in its rules covering these cases, provides that “[E]ach party may take at least one deposition of an opposing party or an individual under the control of the opposing party. The parties shall attempt to agree on the number, time, location, and duration of the deposition(s). Absent agreement, the arbitrator shall determine whether to grant a request for an additional deposition, based upon the reasonable need for the requested information, the availability of other discovery, and the burdensomeness of the request.” Both of these rules give unreviewable discretion to the arbitrator. Moreover, the arbitrator generally will exercise discretion at the time of the case management conference, held at the outset of the case, when the parties, particularly the claimant, have the least information about how the case will progress. Of the two rules, JAMS is worse. The presumption of one deposition per side, in an employment case, allows the company to obtain the deposition of the claimant (generally the only one really necessary) but puts the claimant at the risk of explaining why one deposition will not work for him or her. It may be time for both AAA and JAMS to consider adding the arbitrator’s discovery philosophy to the list of items otherwise disclosed by prospective arbitrators in the selection process, at least for employment, class action and complex commercial cases. In these cases, arbitrators who believe in restrictive discovery as a major cost control device may run the risk of non-selection. On the other hand, companies may deselect prospective arbitrators who indicate that there will be no controls on discovery. The requirement of prospective disclosure is likely to result in moderated and more uniform discovery overall, not as subject to the whim of an arbitrator picked without such prior disclosure. The requirement of preliminary disclosure would add no cost to an arbitration process. Most importantly, however, it would provide each party with important knowledge, which now can be obtained only anecdotally, as they search for a fair and just procedure to vindicate their positions. Joseph Garrison is a principal of Garrison, Levin-Epstein, Chimes & Richardson in New Haven. If you are interested in submitting an article to Law.com, please click here for our submission guidelines

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