Discovery in Arbitration Page 11 Fall/Winter 2018 documents that the other side has subpoenaed to be produced at the hearing. However, there has been a strong trend among alternative dispute resolution providers to control the prehearing process and mandate the exchange of documents and the identification of wit- nesses prior to the arbitration hearing. While preliminary hearings are at least nomi- nally optional at the request of a par- ty or at the direction of the arbitra- tor,14 their use has proliferated in recent years. As a practical matter, there is now almost always a tele- phonic prehearing conference held in AAA arbitrations even in consumer cases un- der $25,000.15 Many other ADR providers, whether expressly or not, have taken a simi- lar viewpoint. As Martha Stewart would say: “It’s a good thing.” Preliminary hearings and conferences provide an ideal opportunity for the arbitrator and counsel to address schedul- ing matters, discovery issues, and the pre- hearing exchange of documents and other in- formation at an early stage in the proceed- ings. Preliminary hearings can be especially valua- ble when the parties have not made any ex- press provision in their arbitration agreement for discovery. Discovery in arbitration in- volves a much more collaborative process than in court proceedings. Indeed, when there is no express right to discovery under an ADR pro- vider’s rules or even an outright proscription against discovery, any discovery the parties voluntarily agree to during a preliminary hearing will normally be permitted by an arbi- trator. In other words, an arbitrator will inter- vene only when there is a disagreement among the parties whether discovery should be allowed or the appropriate scope or manner of discovery. Even then, most arbitrators will (Continued from page 10) effectively try to negotiate a just resolution among the parties without being forced to make a binding determination. Another mechanism that most of the major ADR providers have now adopted is some pro- cedure for the exchange of exhibits and the identification of witnesses to be called at the arbitration hearing.16 JAMS mandates an even earlier exchange. Somewhat reminiscent of Federal Rule of Civil Procedure 26, the “Exchange of Information” provisions under b o t h J A M S ’ “ S t r e a m l i n e d ” a n d “Comprehensive” Arbitration Rules direct that the parties complete a “voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information (‘ESI’)) relevant to the dispute” and the names of potential wit- nesses within 14 and 21 days, respectively, af- ter all the pleadings have been received.17 The dispute resolution arm of the Financial Industry Regulatory Authority (“FINRA”) (formerly NASD Dispute Resolution) takes the self-executing process even further.18 In its Dis- covery Guide and Document Production Lists, FINRA has promulgated a comprehensive in- ventory of documents that are “presumptively discoverable” and required to be produced in customer arbitrations within 60 days after the answer is due.19 For example, Document Pro- duction List 1 requires a member firm to pro- duce not only all records relating to the cus- tomer’s account20 but also all “[r]ecords of disci- plinary action taken against the associated person by any regulator (state, federal or self- regulatory organization) or employer for all sales practices or conduct similar to the con- duct alleged in the Statement of Claim.”21 Through these and similar procedural devices, ADR providers have taken great strides in re- cent years to ensure that all parties to an arbi- tration are provided with information sufficient (Continued on page 13) “As Martha Stewart would say: ‘It’s a good thing.’”