Friday, October 25, 2013

New AAA Rules in effect for Complex Commercial Disputes

New rules by the American Arbitration Association (AAA) effective this month in "Large, Complex Commercial Disputes" help manage discovery by achieving an efficient and economical resolution of the dispute, while safeguarding a fair opportunity to present claims and defenses. Discovery in the form of production of documents is contemplated, as long as those material documents on which parties intend to rely are not otherwise available, reasonably believed to exist, and relevant to the outcome. This now specifically includes electronically stored information or ESI in the form most convenient and economical to the producing party-- unless the arbitrator finds good cause exists to require otherwise. The arbitrator also is empowered to determine reasonable search parameters for ESI and will weigh the need for ESI against the cost of locating and producing it. Reference to the arbitrator's power to authorize propounding interrogatories is removed, but the arbitrator can still permit depositions. Arbitrators may impose sanctions where there is willful failure to comply with obligations under AAA rules or an order of the arbitrator. Such sanctions could even limit a party's participation in the arbitration, adversely affecting determination of the outcome. However, defaults are not permitted as sanctions. Arbitrators under these new rules should be better equipped to control modern discovery and the costs associated with the advent of electronic discovery. They may also now hear and decide dispositive motions, if the arbitrator determines that the moving party has shown that the motion is likely to succeed and narrow the issues. See AAA rule changes here-- and summary