Mediation & Arbitration / 4 min read
Document production is one of the biggest drivers of cost in arbitration. Beyond printing, parties face expenses for document review, e-discovery, storage, expert analysis of large volumes of materials, and delays tied to disputes over the scope of production. The American Arbitration Association (AAA) provides procedural tools designed to help manage these burdens while preserving fairness, and understanding these tools allows parties and counsel to make strategic decisions.
The AAA Construction and Commercial Arbitration Rules contain substantively identical rules related to document exchange. Construction Rule R-24/Commercial Rule R-23 (Pre-Hearing Exchange and Production of Information) gives arbitrators explicit authority to require parties to exchange documents in their possession or custody on which they intend to rely. Parties must also respond to reasonable document requests and update their production if new relevant materials become known. For electronically stored information (ESI), production must be made in the form that is “most convenient and economical” for the producing party unless the arbitrator finds good cause for another format. Construction Rule R-25/Commercial Rule R-24 (Enforcement Powers of Arbitrator) further empowers arbitrators to manage the exchange, limit or define the scope of requests, and impose sanctions or cost allocations if a party fails to comply, providing a critical lever to curb abusive or overly broad demands.
AAA Consumer Arbitration Rule R-20 differs from the Construction/Commercial discovery rules by imposing more mandatory disclosures and giving the arbitrator slightly broader authority. It requires parties to automatically exchange documents they intend to rely on and to identify hearing witnesses. It also expressly allows the arbitrator to manage other discovery methods— such as depositions and interrogatories—if necessary, while Construction/Commercial rules focus almost entirely on document production and electronically stored information. In addition, the Consumer Rules introduce a AAA oversight step by requiring parties to notify the AAA if a discovery dispute arises, unlike the Construction/Commercial rules where issues go straight to the arbitrator. Overall, Rule R-20 is designed to protect consumers by ensuring fairness and efficiency while still allowing the arbitrator flexibility to order limited discovery when justified. Additionally, Consumer Rule R-36 permits any case with a claim of $25,000 or less to be decided on a documents-only basis unless the arbitrator determines a hearing is necessary. This “documents-only” option can dramatically reduce expenses tied to document production, hearing preparation, and witness participation. Together, these AAA provisions give arbitrators and parties concrete ways to contain the time and costs associated with document production while maintaining an efficient and fair arbitration process.
Given the tools in the AAA rules, here are strategic devices counsel (or parties) can use to keep document production from ballooning costs:
- Negotiate or propose narrow, well-defined document requests. Don’t ask for “all documents relating to X” without specifying dates, custodians, or types. The more precise, the lower the burden on opposing party.
- Early case conference/preliminary hearing. Use the arbitrator’s power to set ground rules: deadlines, form of production, custodians, or limit ESI.
- Use the “documents-only” option (where available). For cases within the consumer threshold, or for smaller cases more generally, agreeing (or asking the arbitrator) to decide based on documents only can save substantially on hearing, cross-examination, and witness costs. But careful: losing the chance to question live witnesses or test document authenticity can carry risk.
- Agree (or request) cost-shifting or cost allocation up front. Where a party imposes a heavy burden (i.e., producing large volumes of ESI or complex searches), the arbitrator may allocate the associated costs to that party in the final award. Mention this in pleadings or in the hearing motions to make the risk clear.
- Protective or confidentiality orders. Sensitive documents can lead to higher costs due to review and redaction. Arbitrators may issue confidentiality orders. This can reduce resistance to production and might streamline disclosure.
- Use technology wisely. Utilize e-Discovery tools, agreed document management platforms, and/or shared drives. Remember that ESI production must be in the most convenient and economical form unless good cause is shown otherwise.
- Limit custodians, date ranges, and/or file types. These classic limitations help reduce scope. Be ready to justify why others are not needed.
- Share a document review platform for production documents only. This approach enables the parties to share the hosting costs of an e-Discovery platform, effectively cutting expenses in half for a two-party dispute. Platforms such as Reveal also allow parties to control access, limiting what each side can see through configurable tags, fields, notes, and user profiles.
- Layered approach. Begin with a voluntary exchange of documents. Following this initial production, allow for limited, targeted requests only for specific documents that remain necessary.
AAA arbitration rules give parties and counsel powerful devices to rein in the most expensive aspect of arbitration—document production—without sacrificing fairness. By understanding the distinct approaches of the various rules, parties can tailor discovery to the size and complexity of the case, propose precise parameters, and leverage arbitrator authority to prevent unnecessary costs. Whether through narrow requests, early case management, cost-shifting, or even a documents-only process, these tools provide a roadmap for keeping arbitration focused on efficient dispute resolution rather than discovery battles. Careful planning and strategic use of these provisions can mean the difference between a streamlined arbitration and one that mirrors the cost and delay of litigation.