How Arbitration Discovery Works: Tools, Limits, and Costs

Discovery in arbitration is a narrower, arbitrator-controlled exchange of information before the hearing, and understanding how arbitration discovery works starts with a single idea: the arbitrator decides what is proportional to the dispute, not the parties. Where a federal lawsuit lets each side pursue anything relevant to a claim or defense, arbitration begins with a tight default and expands only when a party shows genuine need. Documents get exchanged, occasionally a deposition is allowed, and experts may file reports, but the volume and cost stay far below what litigation produces.

Where the Arbitrator’s Authority Comes From

Three sources define what the arbitrator can order. Section 7 of the Federal Arbitration Act lets an arbitrator summon any person to appear and bring documents or records material to the case, and lets a federal district court compel attendance or hold a non-complying witness in contempt.¹ Section 7 speaks of witnesses appearing “before” the arbitrators, and that phrasing has caused real problems in non-party discovery, discussed below.

Most states have adopted some version of the Revised Uniform Arbitration Act. Section 17 of the RUAA authorizes the arbitrator to “permit such discovery as the arbitrator decides is appropriate in the circumstances,” to order depositions, to issue protective orders, and to sanction parties who ignore discovery directives.²

In practice, the institutional rules the parties chose in the arbitration clause do the heaviest work. The AAA Commercial Arbitration Rules let the arbitrator require document exchanges, order production of materials relevant and material to disputed issues, and set reasonable search parameters for electronic files.³ JAMS Comprehensive Arbitration Rules require the parties to begin exchanging relevant, non-privileged documents within 21 calendar days after all pleadings are received, and give each party one deposition of an opposing party as of right; additional depositions require arbitrator approval based on reasonable need.⁴ The contract itself can modify these defaults, so reading the arbitration clause before demanding anything is worth the effort.

The Preliminary Hearing Sets the Plan

Most of what will happen in your discovery period gets decided at the preliminary hearing. This is the conference where the arbitrator sets the case schedule and locks in the ground rules.

The AAA’s Preliminary Hearing Practice Guide recommends that parties meet and confer beforehand to try to agree on as many discovery issues as possible.⁵ Typical topics: which documents each side will exchange, whether additional production requests will be allowed, how to handle electronically stored information, whether experts will testify, and what confidentiality protections are needed. The arbitrator then issues a pre-hearing order with deadlines and, ideally, a firm hearing date.

Show up unprepared and you lose leverage. If you haven’t thought through what documents you need, whether electronic records require special search protocols, and whether any depositions are worth requesting, the arbitrator will set a schedule based on what the other side proposes. Arbitrators also look more favorably on discovery requests from parties who tried to work things out informally first.

What You Can Actually Request

Arbitration discovery is governed by relevance and materiality, not the open-ended standard used in federal litigation. Rule 26 of the Federal Rules of Civil Procedure lets a party pursue anything relevant to a claim or defense and proportional to the needs of the case, which in practice produces enormous volumes of material.⁶ Arbitration flips that default: the arbitrator starts narrow and expands only for real need.

Under the AAA Commercial Rules, an arbitrator can require parties to exchange documents they intend to rely on and can order production of additional documents that are “relevant and material to the outcome of disputed issues” and not otherwise readily available to the requesting party.³ The second qualifier matters. If you can get the information from your own files or a public source, the arbitrator is unlikely to force the other side to produce it. Fishing expeditions get denied.

Proportionality is a second filter. The AAA encourages arbitrators to keep the scope of discovery proportional to the stakes and issues.⁷ A demand to review 50,000 emails in a $75,000 contract case will not survive that analysis. A multimillion-dollar construction case may justify broader searches. Under AAA expedited procedures, which apply automatically to claims under $100,000 unless the parties agree otherwise, discovery is limited to exchanging hearing exhibits at least two business days beforehand, with no other discovery permitted absent good cause.⁸

The Tools Available

Document Exchange

Document production is the backbone. Parties typically begin by exchanging what they plan to introduce at the hearing, then move to targeted requests for specific categories such as contracts, financial statements, or correspondence tied to the disputed transaction. The arbitrator can require updates as new relevant documents surface.

JAMS requires the initial exchange of relevant, non-privileged documents and witness names within 21 calendar days after all pleadings are received.⁴ The AAA leaves timing and scope largely to the arbitrator’s discretion and the preliminary hearing order. Cooperation speeds things up. When parties agree on search terms, date ranges, and custodians in advance, they avoid fighting over every request.

Interrogatories

Written questions answered under oath are available in some arbitrations but are far less common than in litigation. Arbitrators tend to see interrogatories as redundant when document exchange and hearing testimony will cover the same ground. When they are permitted, the number is kept small. Their real value is pinning down the other side’s position on specific factual questions, not conducting a wide-ranging investigation.

Depositions

Depositions are the most restricted tool and the most expensive. JAMS gives each party one deposition as of right; additional depositions require the arbitrator to weigh reasonable need, alternative discovery options, and the burden on the opposing party and witness.⁴ Under AAA Employment Arbitration Rules, the arbitrator may order depositions only upon a showing that the testimony is necessary for a full and fair exploration of the issues.⁹ The RUAA similarly requires a showing of need and specifically contemplates depositions when a witness cannot attend the hearing.²

Cost is why depositions are disfavored. A single deposition can run into thousands of dollars once you add reporter fees, transcript charges, and attorney time. In a modest dispute, one deposition can dwarf the value of the information gained, and arbitrators know it.

Expert Witnesses

When technical or specialized issues are involved, parties often present expert testimony. The AAA recommends addressing at the preliminary hearing whether experts will be used and setting a schedule for identifying them and exchanging written reports.⁵ The arbitrator can direct that expert reports stand as the direct testimony, with live testimony at the hearing beginning with cross-examination. The same proportionality analysis applies: requiring both sides to retain expensive experts in a straightforward breach-of-contract case with limited damages may not be worth the cost.

Witness Lists and Exhibit Exchanges

Before the hearing, parties are typically required to exchange lists of witnesses they plan to call and copies of exhibits they intend to introduce. Under JAMS rules, documents and witnesses not previously identified may be excluded from the hearing unless the parties agree or the offering party demonstrates good cause.⁴ The rule blocks ambush tactics.

Electronic Discovery

Electronically stored information dominates most commercial disputes, and arbitration rules have adapted. The AAA recommends that parties categorize the case by expected discovery volume and agree on search methods, production formats, and preservation protocols early.⁷ The arbitrator can set search parameters to balance the need for relevant material against the cost of producing it.

Several details need early agreement. Parties often stipulate that backup tapes and deleted files are excluded from production unless the requesting party makes a heightened showing. Metadata, the embedded information showing creation dates and edit histories, requires a specific agreement on which fields will be produced. The AAA recommends settling these details during the preliminary hearing or in a separate e-discovery protocol.¹⁰ Litigation holds, the duty to preserve potentially relevant data once a dispute is reasonably anticipated, should be confirmed at the preliminary hearing.

Getting Documents From Non-Parties

Obtaining documents or testimony from someone who is not a party to the arbitration is one of the hardest problems in the process, and the law is genuinely unsettled. Section 7 of the FAA authorizes arbitrators to summon “any person” to attend and bring documents, but it says the person must appear “before” the arbitrators.¹ Federal courts have split on whether that language allows pre-hearing document production from non-parties or only permits compelling them to bring documents to the hearing itself.

The majority position, held by the Second, Third, and Ninth Circuits among others, is that Section 7 does not authorize pre-hearing discovery from non-parties. The Eighth Circuit has taken the opposite view. If your arbitration sits in a jurisdiction following the majority rule, the reliable way to get non-party documents is to subpoena the custodian to appear at a hearing session with the documents. Some arbitrators convene a special hearing session solely for that purpose. Whether the non-party can appear by videoconference rather than in person is another open question.

Privileges and Confidentiality

Confidential communications between you and your lawyer stay off-limits in arbitration, just as in court. Attorney work product, meaning materials your attorney prepared in anticipation of the dispute, is also shielded. An arbitrator who ordered production of genuinely privileged materials would risk jeopardizing the final award.

When a party claims privilege, the standard practice is to provide a privilege log identifying each withheld document by date, author, recipient, and subject matter without revealing the privileged content. In large-volume cases, parties sometimes agree to categorical privilege logs that group similar documents rather than listing each one.

Commercially sensitive information, including trade secrets, proprietary formulas, pricing strategies, and customer lists, gets special treatment. The arbitrator can issue protective orders restricting who may view certain materials, prohibiting their use outside the arbitration, and requiring their return or destruction after the case. The RUAA expressly authorizes protective orders to prevent disclosure of “privileged information, confidential information, trade secrets, and other information protected from disclosure.”²

When the parties disagree over whether a document is truly privileged, the arbitrator can resolve it by in camera review, examining the material privately and ruling on the claim without showing it to the opposing side. In some cases the arbitrator reviews only a sample, particularly if one side argues the other is over-designating. Parties can also agree to appoint a separate privilege arbitrator to handle these disputes and keep the main arbitrator insulated from potentially privileged content.

Who Pays for Discovery

Cost allocation is one of the arbitrator’s most effective tools. By default, each party bears the expense of responding to the other’s requests. When discovery becomes lopsided, meaning one party holds most of the relevant information and the other keeps demanding more, the arbitrator can shift costs to the requesting party.

The AAA Commercial Rules give arbitrators explicit authority to allocate the costs of producing documents, including electronically stored records.³ The arbitrator might condition a particular request on the requesting party covering search and review expenses. Some arbitrators apply an outcome-based approach, where discovery costs are ultimately borne by the losing party as part of the final award. When a party seeks information beyond what the arbitrator considers proportionate, a presumption that the requesting party pays often applies.

The incentive works. Parties who might have to pay for their own requests tend to ask for less. Parties facing asymmetric burdens can seek cost protection early, ideally during the preliminary hearing, rather than absorbing unreasonable expenses and raising the issue only after the damage is done.

If a Party Refuses to Cooperate

Ignoring discovery obligations carries real consequences. Arbitrators can sanction parties who fail to produce documents, miss deadlines, or make frivolous objections to legitimate requests. Available sanctions include:

Adverse inference: the arbitrator presumes the withheld information would have supported the other side’s position.
Evidence preclusion: the non-complying party is barred from introducing its own evidence on the relevant issues.
Monetary penalties: the arbitrator can assess fees, costs, and attorney’s fees caused by the non-compliance.
Dismissal: for material and intentional violations, after prior warnings have failed, the arbitrator can dismiss a claim or defense with prejudice.¹¹

The adverse inference is the one that hurts most in practice. Refuse to produce a contract the other side has requested, and the arbitrator can simply assume that the contract says whatever the requesting party claims. That is often worse than producing the document would have been.

Challenging Discovery Rulings After the Award

Courts give arbitrators enormous deference on discovery decisions. If you believe the arbitrator wrongly denied your requests or allowed the other side’s abuses, your only real avenue is challenging the final award, not an interlocutory appeal. Section 10 of the Federal Arbitration Act allows a court to vacate an award where the arbitrators were “guilty of misconduct in refusing to hear evidence pertinent and material to the controversy” or committed “any other misbehavior by which the rights of any party have been prejudiced.”¹²

The bar is deliberately high. Courts distinguish between an arbitrator who refused to admit relevant evidence, which can support vacatur, and an arbitrator who simply limited the volume or methods of discovery, which almost never does. To succeed on a vacatur motion, you would typically need to show that the discovery rulings kept you from presenting a materially important part of your case, not merely that you would have preferred more discovery.

Differences by Arbitration Type

The type of arbitration significantly affects how much discovery you can expect. AAA commercial arbitration under standard rules allows the arbitrator broad discretion over document exchange and, when appropriate, depositions and other tools.³ Employment arbitration under AAA rules follows a similar framework but explicitly requires a showing of need for depositions, reflecting the concern that employees facing corporate employers may not be able to afford open-ended pre-hearing proceedings.¹³

Consumer arbitration tends to be the most streamlined. Many consumer clauses invoke expedited procedures with minimal or no pre-hearing discovery beyond exhibit exchanges. Securities arbitration under FINRA rules operates within its own framework, with specific discovery lists identifying presumptively discoverable document categories. The rules named in your arbitration clause, not general principles, define what tools you actually have. Read those rules before your first conference call with opposing counsel.

1
Office of the Law Revision Counsel. 9 USC 7 – Witnesses Before Arbitrators; Fees; Compelling Attendance
2
Law School Legislation Initiative. Uniform Arbitration Act – Section 17
3
American Arbitration Association. AAA Commercial Arbitration Rules – Rule R-22
4
JAMS. Comprehensive Arbitration Rules and Procedures – Rule 17
5
American Arbitration Association. Preliminary Hearing Practice Guide
6
Legal Information Institute. Federal Rules of Civil Procedure Rule 26
7
American Arbitration Association. AAA Best Practices Guide for Electronic Discovery
8
American Arbitration Association. AAA Commercial Arbitration Rules – Expedited Procedures E-5
9
International Centre for Dispute Resolution. Employment Arbitration Rules and Mediation Procedures – Rule 8
10
American Arbitration Association. eDiscovery Considerations for Construction Arbitrations
11
Financial Industry Regulatory Authority. FINRA Discovery, Abuses and Sanctions Training
12
Office of the Law Revision Counsel. 9 USC 10 – Same; Vacation; Grounds; Rehearing
13
International Centre for Dispute Resolution. Employment Arbitration Rules and Mediation Procedures – Rules 7 and 8