Discovery basics

Why this matters

Discovery is where employment cases are won or lost. The records that prove a leave denial or a retaliation claim sit in the employer's files, and you only get them by asking in the right way. In arbitration the arbitrator controls how much you get, so you need to know the rules and ask for what matters most.

This is general information, not legal advice.

What discovery is

Discovery is the exchange of information before the hearing. Each side asks the other for documents, written answers, and testimony. The goal is to avoid surprise and let both sides see the evidence. The common tools are these.

• Document requests (also called requests for production).
• Interrogatories, which are written questions answered in writing.
• Depositions, which are live questioning of a witness under oath, recorded.
• Subpoenas, for people and records outside the other side's control.
• Requests for admission, where a party is asked to confirm a fact. Check whether your orders allow these.

The arbitrator controls it

Court rules give each side a set of tools as a matter of right. Arbitration does not. Rule R-21(a) of the AAA employment rules says:

"The arbitrator shall manage any necessary exchange of information among the parties, including depositions, interrogatories, document production, or other means"

Under the AAA rules, the parties must exchange documents they plan to rely on and name their hearing witnesses. On request or on the arbitrator's own initiative, the arbitrator can order responses to reasonable document requests for relevant and material documents not otherwise readily available. The arbitrator can also set electronic search parameters and allocate production costs.

JAMS Rule 17 works differently. It provides for a voluntary exchange of non-privileged documents within 21 days of the pleadings. Each party may take "at least one deposition of an opposing Party or an individual under the control of the opposing Party" (Rule 17(b)). Third-party discovery needs approval, and disputes go to the arbitrator.

The JAMS minimum standards say that for agreements required as a condition of employment, "the procedures must provide for an exchange of core information prior to the arbitration." The Due Process Protocol, a model document and not a binding rule, says employees should have access to "all information reasonably relevant" to their claims. It is useful to quote as a model, but the current rules and orders control.

What this means for you.

• Do not assume you get everything a court would give you.
• Plan to ask for what matters most, and explain why you need it.
• Read the order from the first conference closely. It may set limits on requests, depositions, or time.

Subpoenas

Under AAA Rule R-33(d), an arbitrator may subpoena witnesses or documents at the request of any party. The Federal Arbitration Act, 9 U.S.C. 7, lets the arbitrators summon a person in writing to attend as a witness and bring material documents. If a person refuses, a party can petition the U.S. district court where the arbitrators are sitting. Copy the other side on any request.

Court rules are guidance, not binding

AAA R-21(a) and JAMS Rule 17 give the arbitrator discretion over discovery. Court rules apply only if your agreement or the arbitrator's order adopts them. New York's highest court put the general point this way in Matter of Sprinzen (Nomberg), 46 N.Y.2d 623, 629 (1979). The arbitrator "is not bound to abide by, absent a contrary provision in the arbitration agreement, those principles of substantive law or rules of procedure which govern the traditional litigation process." Panels often look to federal and state court rules as models, so knowing them helps you make persuasive arguments. But never tell a panel a court rule binds it unless the agreement or an order says so.

Check your state

• Research the courts of the state where the arbitration sits first, then federal courts. Searching only one system misses authority.
• Ask whether your agreement or an order adopts any court rules.
• Look up your state's civil procedure rules on disclosure.

Proportionality

The federal rules put limits on scope. FRCP 26(b)(1) says:

"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case"

It lists factors to weigh. They include the importance of the issues, the amount in controversy, the parties' access to the information, the parties' resources, the importance of the discovery, and whether the burden outweighs the benefit.

Arbitrators often think in these terms even when they do not cite the rule. Use it as a frame.

• Tie every request to a claim or defense.
• Explain why the material is not available elsewhere.
• Ask for the important categories first. A short list of five to ten anchor categories lands better than a sprawling one.
• Be ready to narrow a request if the other side shows a real burden.

Document requests

A good request names a category clearly, gives a date range, and says what format you want. Examples of categories appear in Chapter 6.

Keep these points in mind.

• Number each request. This makes responses easy to track.
• Say whether you want the documents as kept in the ordinary course or sorted by request.
• Ask for the form of electronic records. See below.
• Ask the other side to produce or confirm in writing that none exist. That gives a clear answer.

Interrogatories

Interrogatories are written questions. They work best for narrow facts, such as who made a decision, who was told about something, and when. They are weak for broad stories. A good answer states the principal facts, who, what, when, and where. It need not list every fact, and it cannot just point at a pile of documents.

Number limits depend on your forum. FRCP 33(a)(1) allows "no more than 25 written interrogatories, including all discrete subparts" unless stipulated or ordered. That is a court rule. Your arbitration may have a different limit or none. Read the order.

Depositions overview

A deposition is sworn questioning, often recorded and transcribed. In arbitration they are limited, because they cost time and money. JAMS Rule 17(b) allows at least one per side. Under AAA rules, the arbitrator decides.

The federal rule limits a deposition to "1 day of 7 hours" unless stipulated or ordered (FRCP 30(d)(1)). Again, that is a court rule. Ask the panel for a written time limit in the order. Chapter 8 covers depositions in detail.

Electronically stored information

Most evidence in a leave or retaliation case is electronic. Emails, texts, chat messages, calendar entries, timekeeping records, and system logs are all electronically stored information (ESI).

• Ask for ESI in a usable form. FRCP 34(b)(2)(E) says that, if no form is stated, ESI should be produced as ordinarily maintained "or in a reasonably usable form."
• Ask about preservation early. If relevant data was lost after a duty to preserve arose, FRCP 37(e) lets a court order measures to cure the harm, and allows the strongest remedies only on a finding of intent to deprive.
• AAA Rule R-21 lets the arbitrator set search parameters for electronic records. Be ready to propose names, date ranges, and terms.
• Record the source of each item you receive.

Privilege and privilege logs

Privilege protects some communications, such as those with a lawyer. A party who withholds a document as privileged should say so and describe it enough to let the other side assess the claim. FRCP 26(b)(5)(A) requires a party to "describe the nature of the documents, communications, or tangible things not produced or disclosed." This is often done with a privilege log.

AAA R-33 requires the arbitrator to consider legal privilege. JAMS Rule 22(d) says the arbitrator "shall apply applicable law relating to privileges and work product." Your own privilege, such as for health records, matters just as much. Chapter 7 covers that.

If the other side claims privilege but offers no log, ask them to either produce the material or log it.

Sanctions usually follow an order

Under AAA Rule R-22(d), for willful non-compliance with an arbitrator's order, the arbitrator may draw adverse inferences, exclude evidence, and make special allocations of costs. So the usual path is to get an order compelling the other side first, then ask for penalties if they ignore it. Chapter 9 explains the steps and the other sanctions rule, R-57.

New York as the example

New York court procedure is a good example of how state rules differ from federal ones. Do not assume your state works the same way. Look up your own.

Two cautions. First, the number and time limits come from the court rules in 22 NYCRR Part 202, not from the CPLR itself. Those rules govern New York's Supreme and County Courts and do not bind an arbitrator unless the order adopts them, so cite them as a model if you cite them at all. Second, New York case law adds more detail. If you rely on New York procedure, read the current text on the state's official site and check for cases before you cite anything.

Check your state

• Find your state's rules on scope of discovery, interrogatories, document requests, and depositions.
• Check whether your state sets numeric limits. Many do, and they differ.
• Check your state's privilege and medical-record rules.

Practical habits

• Keep an index of what you served and what you received.
• Read the other side's production page by page. Build an index of people, dates, and topics.
• Before you ask for something, ask whether you could answer the same request yourself. Aggressive requests invite the same back.
• Cite documents by exact page or Bates number, not a range.
• Keep one facts file and update it first when new evidence arrives.

Checklist

• Order and agreement checked for discovery limits.
• Top document categories chosen and tied to claims.
• ESI form and search terms proposed.
• Preservation raised early.
• Privilege log requested where privilege is claimed.
• Your own production plan made before they ask.

For what each common objection means and how to answer it, see Chapter 16, Discovery objections, decoded.

Next: Chapter 6, What to ask for.

Sources

• AAA Employment Arbitration Rules and Mediation Procedures (PDF)
• JAMS Employment Arbitration Rules
• JAMS Employment Minimum Standards of Procedural Fairness
• AAA Employment Due Process Protocol (PDF)
• FRCP Rule 26, duty to disclose and general provisions
• FRCP Rule 33, interrogatories
• FRCP Rule 34, producing documents and ESI
• FRCP Rule 37, failure to make disclosures or to cooperate
• 9 U.S.C. 7, witnesses before arbitrators
• New York 22 NYCRR Part 202 (202.20 and 202.20-b limits)