Parties to contractual arbitration possess a limited right to discovery in California. See California Code of Civil Procedure §1282.2(a)(2) (where amount in controversy exceeds $50,000, parties may demand an exchange of witness lists and copies of the documents to be presented at the hearing). The full range of discovery devices contained in California’s Civil Discovery Act are only available under two specific sets of circumstances: (1) where the arbitration agreement expressly provides for incorporation of §1283.05 of the California Code of Civil Procedure; or (2) where the dispute involves a tort claim for personal injury. More limited party discovery also may be permitted by contract (e.g., “the parties to this contract may conduct x number of depositions and propound y and z forms of discovery”), pursuant to the rules of the arbitration organization handling the matter (e.g., AAA or JAMS), or where statutory claims are involved.
But when it comes to nonparty discovery, the only clearly permissible basis in contractual arbitrations is through incorporation of CCP §1283.1 into the arbitration agreement. This is not to say that an arbitrator lacks authority to order witnesses including nonparty witnesses to attend and produce documents at an arbitration hearing or attend a deposition for use later as evidence (but not for purposes of discovery). Though this is not discovery, it is much the same as a trial court’s authority to issue subpoenas requiring witnesses to appear at trial and bring documents. Moreover, as opposed to the corresponding provision of the Federal Arbitration Act (9 U.S.C. §7), no California court has construed CCP §1282.6 as allowing arbitrators to order pre-hearing discovery.
