“Discovery” is also known as “exchange of information”. Discovery management is a major contributor to the savings that the arbitration process offers over traditional court litigation. In the arbitration process, discovery is limited to the provisions that the arbitrator allows. Thus the arbitrator may limit number of interrogatories that may be propounded. Or the arbitrator may specify that there will be no oral depositions. In an appropriate situation, the arbitrator may even rule that there is to be no discovery.

The arbitrator may make other discovery-related rulings that encourage the parties to cooperate with the process and discourage gamesmanship. One example of this is that the arbitrator may specify that information fairly called for in an interrogatory answer that is not provided shall be precluded from consideration at the final hearing. An alternative or additional possible provision is that the arbitrator may draw an adverse inference as to contents of materials requested but not provided. (The arbitrator may draw such an inference even in the absence of a pre-hearing ruling to that effect.)

Judges in court litigation can issue similar rulings. It is the experience of New Jersey Arbitrators™ that courts seldom impose discovery limitations. Moreover, courts often refuse to enforce discovery rulings.

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