Limiting discovery in arbitration: Should you write discovery out of the deal?

Parties often choose arbitration because they believe it will be less costly and more efficient than domestic litigation, but that's not always the case

As a general rule, corporate defendants do not hold discovery in high regard. Discovery is viewed — at best — as a necessary evil to be carefully managed lest it turn into a nightmare. Arbitration, which is contract-based dispute resolution, can provide relief from discovery-related concerns. Parties can simply contract-away discovery in their agreement to arbitrate (or, perhaps more cautiously, contract to greatly limit discovery rather than banish it altogether).

Given the potential benefits of limiting discovery, and the relative freedom to do so, two questions come to mind. First, should parties include limitations on discovery in their agreement to arbitrate? Second, in the alternative, are there times when a party should affirmatively stake out a right to discovery in the arbitration clause?

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Philip D. Robben

Philip Robben is a partner in Kelley Drye’s New York office and co-chair of the firm’s international arbitration practice. He has extensive experience with...

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Melissa E. Byroade

Melissa Byroade is an associate in Kelley Drye’s New York office.  Her practice focuses on  international arbitration and complex commercial litigation.  Ms. Byroade’s broad...

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