If you arbitrate employment disputes, then you may have seen that the limits on discovery vary from arbitrator to arbitrator. Some allow interrogatories, some don’t. Some limit the number and length of depositions, some don’t. The American Arbitration Association’s Employment Arbitration Rules don’t provide much guidance, saying simply that:
The arbitrator shall have authority to order such discovery, by way of deposition, interrogatory, 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 arbitration."
Contrast that with the 70 pages or so of the California Code of Civil Procedure devoted to discovery and you can see how much flexibility and discretion arbitrators have in this area.
According to a California court of appeal decision published last week, Dotson v. Amgen, limits on discovery can be included in the arbitration agreement, itself. In that case, the agreement stated:
Each party shall have the right to take the deposition of one individual and any expert witness designated by another party. . . . Additional discovery may be had where the arbitrator selected pursuant to this agreement so orders, upon a showing of need.
The trial court found the provision unconscionable and refused to enforce the arbitration agreement. But the appellate court disagreed. It recognized that "arbitration is meant to be a streamlined procedure" and that the only way to achieve that streamlining is by limiting discovery.
Employers creating (or revising) arbitration programs need to be aware of the judicially created rules for an enforceable arbitration agreement. But as long as they meet those requirements, nothing prevents them from limiting discovery in the manner the Dotson decision upheld.