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A man rides an arrow upward over a hole symbolizing the avoidance of a challengeIn another recent article, we explained how arbitration, even under the auspices of a sophisticated arbitral forum such as the American Arbitration Association (AAA) or JAMS, lacks detailed rules about work product protection in expert discovery, and how to avoid stepping in the trap that haziness can create. Newman, D. and Lippert, M., Work Product Protection for Experts in Arbitration: A Trap for the Unwary, N.Y. Law Journal Feb. 7, 2020 at 4. But this absence of default rules is not unique to work product issues. Arbitration lacks clear standards for expert discovery or the submission of expert evidence in general. This (and other types of) procedural freedom are usually extolled as a feature, rather than a “bug,” of arbitration. The parties are free to do whatever works for them. But this places the onus on the parties, from very early on in a dispute, to come to a detailed agreement about how expert discovery will work and how expert evidence will be submitted to the arbitrator(s). Relying on assumptions about how things are usually done, or how the arbitrator(s) will eventually decide they ought to be done, can result in very unpleasant surprises.

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