The Expanding Scope of Discovery in Arbitration Proceedings During the past few decades, the historic aver- sion to discovery has been challenged by two significant developments. First, there has been an explosive growth in the number and com- plexity of “big stakes” matters which are being referred to arbitration, and arbitration has be- come increasingly prevalent as an alternative to litigation in such highly sophisticated fields as patent and reinsurance matters. “In complex disputes or those involving substantial sums, it borders of the absurd to arbitrate unless some modicum of prehearing discovery is availa- ble.”10 In many cases, the parties to such dis- putes are now simply de- manding that there should be a “right” to prehearing discovery even when there is no express statutory or contractual provision which so provides. The major ADR providers have responded to these calls.11 Second, the scope and nature of arbitrations have expanded exponentially from their roots in resolving relatively simple contractual dis- putes between businesses with roughly equal bargaining power to the point that arbitration provisions now directly affect virtually all adult Americans. Millions of employees, credit card and bank customers, franchisees, and anyone who operates an Internet site have all been added to the rolls of those who are subject to mandatory ADR provisions. One consequence of widespread mandatory ADR provisions is a greater concern for due process protections. In the employment context, these concerns are exemplified by the decision in Cole v. Burns International Security Services, (Continued from page 9) 105 F.3d 1465, 1473 (D.C. Cir. 1997) in which the court formulated five minimum requirements for the lawful arbitration of statutory employment rights. One of these requirements is that the mandatory em- ployment agreement must provide “for more than minimum discovery.”12 In addition, the “Due Process Protocol for Mediation and Arbitration of Statutory Dis- putes Arising Out of the Employment Rela- tionship” (the “Employment Protocol”), de- veloped by a task force of representatives from AAA, ABA, National Employment Lawyers Association, ACLU and others, di- rects: “Adequate but limited pre-trial dis- covery is to be encouraged and employees should have access to all information rea- sonably relevant to mediation and/or arbi- tration of their claims.” Implementing the Employment Protocol, Rule 7 of the AAA’s National Rules for the Resolution of Em- ployment Disputes now provides: “The arbi- trator shall have the authority to order such discovery, by way of deposition, interrogato- ry, 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 ar- bitration.”13 In sum, it can no longer be flatly stated that there is no “right” to discovery in arbitra- tion proceedings. But how have ADR pro- viders implemented this brave new world of discovery in arbitration, and how can the parties themselves control their own desti- ny in the matter? Preliminary Hearings and the Pre- hearing Exchange of Information There is nothing quite so destructive to the smooth operation of an arbitration hearing as for the parties to wait until the first day of hearing before exchanging the documents they intend to use as exhibits or producing (Continued on page 11) Page 10 FBA/OC Discovery in Arbitration “[E]xplosive growth in the number and complexity of ‘big stakes’ matters which are being referred to arbitration”