Provisions for an Arbitration Scheduling Order to Get to a Hearing in 12 Weeks, Adapted from the Manual for Complex Litigation, [draft]
Telephonic interviews may be conducted during: Weeks 1 through 7
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- Disclosures are due
Telephonic 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 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 4.4, or by agreement at any time, any party may conduct a short, informal interview, each lasting up to 30 minutes, 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 4.4. (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 prevent counsel from taking too much time, even if by agreement, and thus unnecessarily increasing costs; it gives 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. For good reason, 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. 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, 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 encouraged, where practicable: to provide the individual being interviewed with advance written questions; and COMMENT: See the text and commentary of § 4.9.2 (advance written questions). to conduct the interviews as “conference” interviews with multiple individuals. COMMENT: See the text and commentary of § Error: Reference source not found (“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 cause with the arbitrator’s approval. 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 an authorized deposition (if any) or at the hearing. Disclosures are due: Tuesday of Week 4COMMENT: This section is adopted pursuant to the arbitrator’s express authority, under AAA Commercial Rules R‑22 and P‑2(a)(viii), and the arbitrator’s implied authority under AAA Employment Rule 8(e), to direct an exchange of information; it borrows from Rule 26 of the Federal Rules of Civil Procedure and MCL 11.13, which states (at 35) that “[e]ffective use of [mandatory disclosures] without excessive and unnecessary burdens on the parties can streamline the litigation.” Each party (“disclosing party”) is to serve, on each other party and on the arbitrator—without awaiting a discovery request—the following information, as then best known to or contemplated by the disclosing party or its counsel, as applicable: COMMENT: This is adapted from Fed. R. Civ. P. 26(a); see also AAA Commercial Rule R‑22(b)(i). the name and, if known, the address, email address, and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party might use to support its claims or defenses, unless the use would be solely for impeachment; a copy, marked as an exhibit, of each document, electronically stored information, and tangible thing—and only those documents, etc.—that the disclosing party (1) has in its possession, custody, or control and (2) genuinely contemplates, at that point in time, using to support its claims or defenses, unless the use would be solely for impeachment. Counsel are cautioned not to engage in strategic withholding of evidence, and also conversely not to try to inundate the other side with documents, etc., for purposes of harassment. a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying the documents or other evidentiary material on which each computation is based, including materials bearing on the nature and extent of injuries suffered; COMMENT: If a case were bifurcated, this requirement normally would not apply in the initial, liability-focused phase of the case. This requirement does not include the carve-out in Fed. R. Civ. P. 26(a), which exempts from disclosure any documents and other evidence that are privileged or protected from disclosure (because the computing party would have to waive privilege in any case in order to rely on the documents and other evidence). any insurance agreement under which an insurance business might be liable to satisfy all or part of a possible judgment based on the award in the arbitration or to indemnify or reimburse for payments made to satisfy the judgment; COMMENT: See the comment to subdivision above. any other document or thing required by the parties’ agreement or directed by the arbitrator; and the extent, if any, to which the disclosing party’s initial disclosure does not comply with this section 4.5.1, and, with particularity, any factor(s) that the disclosing party believes excuse the non-compliance. Each party’s disclosure is due as stated in the heading of this section 4.5 or as otherwise directed by the arbitrator. Except for good cause clearly shown, the arbitrator will not consider, in support of a party’s claims or defenses, any exhibit that was not disclosed by that party as part of the party’s disclosure or in response to a request for production of documents. COMMENT: This provision borrows from MCL 11.33 and MCL 11.641. 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. 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