Provisions for an Arbitration Scheduling Order to Get to a Hearing in 12 Weeks, Adapted from the Manual for Complex Litigation, [draft]
Depositions only with arbitrator’s approval
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Depositions only with arbitrator’s approvalArbitrator 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 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 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. COMMENT: This is based on suggestions in MCL 12.331 and 12.332. SubpoenasAny party requesting the issuance of a subpoena is to serve a copy of the request and the proposed subpoena on all other parties at the same time as the requesting party makes the request of the arbitrator. Any subpoena that a party wishes to be issued to a third party for discovery purposes (as opposed to for hearing purposes) must include a prominent citation of the legal authority under which an arbitrator may issue such a subpoena for that purpose (in part for the purpose of educating the recipient of the subpoena and/or the recipient’s counsel). COMMENT: Depending on the applicable law, the arbitrator might or might not have the legal authority to compel third-party testimony or document production other than at a hearing. See, e.g., section 7 of the Federal Arbitration Act, which is interpreted differently on this point by various federal courts of appeal. See Liz Kramer, Document subpoenas to third parties, at http://goo.gl/esq7C (ArbitrationNation.com 2012); and various state arbitration statutes. In some jurisdictions, arbitrators do not necessarily have authority to issue third-party discovery subpoenas. For third-party discovery desired in such jurisdictions, upon request by a party (and after any other party has an opportunity to be heard on the request), on a case-by-case basis the arbitrator will consider, in the arbitrator’s discretion, conducting one or more special discovery hearings in such jurisdictions. COMMENT: Special hearings can be useful if applicable law doesn’t give arbitrators the authority to issue subpoenas for discovery. AAA Commercial Rule R‑11 states that “The arbitrator, at the arbitrator’s sole discretion, shall have the authority to conduct special hearings for document production purposes or otherwise at other locations if reasonably necessary and beneficial to the process.” Mediation is scheduled for: Thursday of Week 9Unless either party opts out, the parties are to mediate the dispute as stated in the heading of this section 4.10. COMMENT: Mediation is required by AAA Commercial Rule R‑9 unless either party opts out; mediation is also contemplated by AAA Employment Rule 7, which appears to require the parties to agree to it. The hearing will begin: Tuesday of Week 12Hearing scheduleThe hearing is to take place as stated in the heading of this section 5. COMMENT: See AAA Commercial Rule R‑23 and AAA Employment Rule 11. The arbitrator, in consultation with the parties’ counsel, may determine whether to conduct one or more issue-specific hearings by conference call (and/or video call) and written evidence. COMMENT: See: AAA Commercial Rule R‑32(a), which authorizes the arbitrator to “direct the order of proof, bifurcate proceedings and direct the parties to focus their presentations on issues the decision of which could dispose of all or part of the case”; AAA Commercial Rule R‑23, which contemplates the possibility of multiple hearings; AAA Commercial Rules R‑35 and P‑2, which contemplates that witness declarations may replace direct testimony; AAA Employment Rule 8(o), which contemplates that testimony may be by affidavit. In exceptional cases such as illness of a necessary participant, the arbitrator has discretion to delay the start of the hearing. COMMENT: See AAA Commercial Rule R‑30 and AAA Employment Rule 24, which give the arbitrator discretion to postpone “any hearing.” Directory: docs docs -> Application for acem docs -> Observational Assessment of Teaching Practices Teaching Assessment Initiative Proposal Submitted to The Teachers for a New Era project docs -> Traditional British values docs -> From Warfighters to Crimefighters: The Origins of Domestic Police Militarization docs -> Borzoi Club of America Register of Merit Program I. What is a Register Of Merit docs -> Protecting the rights of the child in the context of migration docs -> United Nations E/C. 12/Esp/5 docs -> 9th May 1950 the schuman declaration docs -> Getting To Outcomes® in Services for Homeless Veterans 10 Steps for Achieving Accountability Download 260.83 Kb. Share with your friends:
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