Claimant: Provide the following information for each allegation of breach of contract, in short, separate, numbered paragraphs.
Identify the allegedly-breached contract.
Identify any other contract (if any) that you believe to be relevant, and explain why.
Explain the general purpose of the contract that was allegedly breached.
For each alleged breach of that contract, explain — in detail —exactly what the breaching party did, or failed to do, that constituted the breach.
Identify the specific contract clause (or clauses) that you believe were breached.
Tell the story with all relevant supporting details that you think might help to persuade the arbitrator: Who. What. When. Where. Why. How.
Be sure to explain the context.
Don't assume that the arbitrator is familiar with your particular situation.
State whether the arbitrator, in interpreting the breached clause, should take into account any of the following. If so, explain why, providing all supporting details that you think might help persuade the arbitrator.
Other clauses in the breached contract;
Clauses in other contracts;
Ongoing practices of the parties;
Industry practices, customs, or usages;
Laws or regulations.
Remedies: State exactly what you believe the arbitrator should do about the alleged breach(es).
Explain, providing all relevant supporting details that you think the arbitrator should take into consideration.
If your answer is “order the other party to pay X amount of money,” explain exactly how you arrived at that amount.
Revise each of the items above so that each item is separately annotated with:
a list stating the name and contact information of each individual (including experts) who will testify as to that item and what that individual is expected to say (be sure to indicate “foundation” information). This is a prelude to the preparation of a written witness statement for each such individual;
a list stating the name and contact information of each other individual known to have relevant knowledge of that item; and
a list identifying each document or thing that the arbitrator should take into consideration concerning that item (and preferably provide a copy of each document, labeled as an exhibit).
Respondent: On a point-by-point basis:
State your response to each assertion by Claimant above.
In similar fashion to Claimant’s statement: Identify each additional detail, individual, and document that you believe should cause the arbitrator to decide differently.
Non-binding mini-trial to senior management
after initial disclosures The non-binding mini-trial conference call is scheduled for: Thursday of Week 6
In the interest of trying to resolve the dispute amicably as early as possible after the initial disclosure exchange under section 4.2, the parties are to conduct a non-binding mini-trial conference call with representatives of the parties’ senior management on the date stated in the heading of this section 5.1 or as otherwise agreed.
COMMENT: This is a variation on AAA Commercial Rule R‑9, which requires mediation unless either party opts out. Mediation is also contemplated by AAA Employment Rule 7, which appears to require the parties to agree to it.
Some corporate litigation counsel believe that the mini-trial procedure is one of the best ways of amicably resolving disputes early in the process.
The mini-trial will be conducted by private “Webinar” (to allow all concerned to see exhibits), in accordance with the mini-trial procedures of the AAA, unless the parties agree otherwise.
The arbitrator will serve as chair and neutral advisor of the mini-trial.
Discovery procedures Document production may be requested during: Weeks 1 through 7
Introduction: During the time period specified in the heading of this section 6.1, either by agreement or with the arbitrator’s prior approval in each instance, any party may request production of specific documents, or of narrowly-focused categories of documents, that are in the possession, custody, or control of another party.
COMMENT: AAA Commercial Rule R‑22(b)(ii) and (iv) and AAA Employment Rule 9 give the arbitrator the authority to direct the production of documents. Under those rules, though—unlike most U.S. litigation rules—parties are not automatically entitled to document discovery.
Criteria for arbitrator approval: Absent agreement of the parties, the arbitrator expects to approve only narrowly-targeted requests for production of relevant documents that can be readily complied with without undue expense, burden, or inconvenience on the part of the producing party.
COMMENT: The parties’ in-house representatives should normally be consulted about an expensive or burdensome document production, even if outside counsel agree to it.
Redfern Schedule: Counsel proposing document requests for arbitrator approval are to use the so-called “Redfern Schedule” format, in which requests for documents are listed in a table, where column A is the text of the request; column B is the requesting party’s justification, if any; column C sets forth the requested party’s objections, if any; and column D is the arbitrator’s decision on that request.
COMMENT: The Redfern Schedule format is named for its originator, British arbitrator Alan Redfern. See generally, e.g., Michael A. Roche, Document Production Basics for International Arbitration, in American Bar Association Young Lawyer Division, The Young Lawyer, Feb. 2012, at http://goo.gl/Lb8zrS (AmericanBar.org 2012) (accessed Dec. 11, 2014).
Request numbering: To make it easier to find requests for production of documents in case indexes, each party is to number its requests in a respective single sequence, i.e., without repeating the numbers used on any prior set of requests propounded by that party, regardless of the party or parties upon whom the same were served. The title of each set of requests is to include the range of numbers thereof and a parenthetical indicating the party to which the requests are propounded. EXAMPLE: “ABC’s Requests for Production of Documents No. 5-8 (to XYZ)."
Deadlines: Counsel are strongly encouraged to agree on deadlines for production of documents pursuant to an approved request; absent agreement, production is due two business days after the arbitrator’s approval of the request unless the arbitrator, for good cause, directs otherwise.
Certain objections not waived: A party’s production of particular documents in response to an agreed- or approved request will not in itself waive (1) any timely-made objection to admissibility of those documents, nor (2) any timely-made objection to production of other documents that might be responsive to the same request.
Privilege logs, if any, are to be served on the requesting party at the same time as production is due unless otherwise agreed or directed by the arbitrator.
Production mechanics: Production of documents is to be by email unless impracticable (e.g., because of PDF size); where practicable, service of large documents should be by electronic means. Parties are reminded that email is not necessarily secure.
True copies required: All documents produced must be complete and accurate copies of the originals; the arbitrator may direct that any original document be presented for inspection.
Electronic documents: Counsel are strongly encouraged to agree on the form of and procedure for production of electronic documents (including search terms where applicable). The arbitrator will decide any disagreements in that regard on a case-by-case basis.
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