The American Arbitration Association (“AAA”)’s recent revisions to the AAA’s Commercial Arbitration Rules are effective for any AAA-administered arbitration filed on or after today, October 1. One area of update is the discovery process. Going forward, unless otherwise agreed to by the parties, these new rules should make it easier for arbitrators to more closely control discovery and its related costs:
- Rule 21 indicates the arbitrator should schedule a preliminary hearing “as soon as practicable after the arbitrator has been appointed” to establish arbitration procedures that will achieve a fair, efficient, and economical resolution of the dispute.
- Rule 22 indicates that discovery should be managed “with a view to achieving an efficient and economical resolution of the dispute, while at the same time promoting equality of treatment and safeguarding each party’s opportunity to fairly present its claims and defenses.” It also indicates that unless the arbitrator finds good cause to order otherwise, a producing party need only make electronically stored information (“ESI”) available “in the form most convenient and economical for” the producing party. It describes “reasonable” document requests as those which are
- not otherwise readily available to the party seeking the documents
- reasonably believed by the party seeking the documents to exist
- relevant and material to the outcome of a disputed issue
- Rule 58 authorizes the arbitrator to impose sanctions such as limiting a party’s participation in the arbitration or an adverse determination of an issue or issues “where a party fails to comply with its obligations under these rules or with an order of the arbitrator.” However the arbitrator may not enter a default award as a sanction.
