Draft 2015-06-15 An Arbitration Scheduling Order Drawing on the Manual for Complex Litigation for Faster, Less-Expensive Awards
Voluntary telephone interviews may be conducted during: Weeks 1 through 7
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- Approved depositions may be conducted during Weeks X through Y
Voluntary telephone interviews may be conducted during: Weeks 1 through 7COMMENT: AAA Commercial Rule P‑2(a)(viii) contemplates that the arbitrator may “establish any additional procedures to obtain information that is relevant and material to the outcome of disputed issues.” AAA Employment Rule 9 gives the arbitrator the authority to order discovery. This section is adapted from the Model Case Management Scheduling Orders cited in the commentary to § 3.4. It tries to address, in a cost-effective way, one of the most common complaints about arbitration, namely the restrictions on depositions. (Early telephone discussions also can help promote early settlement.) During the time period specified in the heading of this section 6.2, or by agreement at any time, any party may conduct a short, informal interview, each lasting up to 30 minutes unless otherwise agreed, with each of up to five employees or other individuals under the control of another party to this arbitration, subject to the limitations in this section 6.2. (For convenience, each such employee or other individual is referred to as an “employee” and the other party to this arbitration as the individual’s “employer”; such references are not intended to imply that an actual employment relationship exists.) COMMENT: The time limit per interview is intended to give interviewing parties an incentive to get down to business quickly. The limit on the number of interviews is intended to prevent counsel from going overboard and increasing costs; the limit provides interviewing parties with an incentive to be selective about the employees whom they want to interview. An employer may (1) decline to make one or more specific employees available for such an interview; and/or (2) direct an employee being interviewed not to answer one or more particular questions. (NOTE: The arbitrator may take any such action by the employer into account in deciding whether to authorize such an employee to be formally deposed.) COMMENT: This provision gives an employer’s counsel considerable control over a telephonic interview of an employee by an adverse party. But counsel should keep in mind that the arbitrator might have the power to order a formal deposition if necessary. Moreover, AAA Commercial Rule L‑3(f) gives the arbitrator the authority to allocate costs of a deposition (AAA Employment Rule 9 is silent on that point). To reduce costs, all such interviews are to be conducted by telephone or other remote electronic means, for example by Internet video conference, unless the parties agree otherwise. COMMENT: Counsel should consider conducting such interviews by inexpensive video conference, e.g., using Skype, Zoom.us, GoToMeeting, etc., to gain the advantages of seeing the person being interviewed. In telephonic interviews, counsel are strongly encouraged, where practicable: to provide the individual being interviewed with advance written questions; and to conduct the interviews as “conference” interviews with multiple individuals. COMMENT: See the text and commentary of section 6.3.2 (advance written questions for depositions) and section 6.3.3 (“conference” depositions). The party arranging any interview is to make reasonable efforts to set a mutually-convenient time for it. Any party may arrange to record one or more portions of any interview, at its own expense. The fact that the interview is being recorded must be announced, to all participants in the interview, at the beginning of the recording; the announcement itself must be recorded. No portion of any such recording may be introduced into evidence except (1) for impeachment or rebuttal purposes, or (2) for good reason with the arbitrator’s approval after reasonable notice to all other parties. COMMENT: This clause should make counsel more comfortable about the informal nature of the telephonic-interview approach. Neither a party’s questioning of an employee in an interview, nor the party’s declining to question the employee, will preclude that party from subsequently questioning the employee, including asking the same or similar questions as asked during the interview, during (i) an authorized deposition, if any, or (ii) the hearing. Approved depositions may be conducted during Weeks X through YArbitrator approval required: In the interest of controlling costs, depositions may be taken only with the arbitrator’s specific approval for each deposition upon reasonable notice to the other party and to the deponent. COMMENT: Depositions are one of the most prominent sources of expense in litigation and arbitration. The AAA Commercial Rules severely restrict the parties’ ability to take depositions; see Rule L‑3. AAA Employment Rule 9 leaves the question of depositions up to the arbitrator. Written questions in oral depositions: Counsel taking a deposition are strongly encouraged to send the deponent advance written questions, with a copy to all other parties. COMMENT: This written-questions procedure is not unlike “30(b)(6)” depositions under the Federal Rules of Civil Procedure. It is adapted from the Model Case Management Scheduling Orders for Patent Cases cited in the commentary to § 3.4. To save time, if the witness elects to answer the questions in writing and sign the answers under penalty of perjury, or if the witness adopts the unsigned written answers during oral testimony, then the questions and answers could be attached as an exhibit to the transcript. Propounding written questions in advance may help reduce the time needed for an interview or deposition. A questioning party can serve written questions to get at least some information from an individual being interviewed in advance. Counsel for the questioning party can then follow up with oral questions, possibly in a telephone deposition, if desired. Conference depositions: With prior notice to all other parties and to each individual to be deposed, a party may depose more than one person in the same authorized deposition. In such a “conference” deposition, the various individuals being deposed may be respectively examined in person, by telephone or other remote electronic means, or both. COMMENT: This provision is adapted from a suggestion in MCL 11.423 at 59, also in MCL 11.453 at 87. Transcript excerpts as exhibits: All transcript excerpts proposed to be used in the arbitration, at the hearing or otherwise, are to be marked as exhibits. 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