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Discovery in arbitration v lawsuit .. . . .

Boston, MA |

In Massachusetts, is there the same "discovery" for records in binding arbitration as there is in filing a lawsuit? Would I be able to get my customer profile and records from my wireless provider that they say are "proprietary"???

Attorney Answers 4

  1. Best answer

    I agree with Attorney Bluff. Discovery in a lawsuit is different than that in an arbitration. With lawsuits, you generally can obtain anything relevant that is not protected by privilege or otherwise. With arbitration, you generally need to request the arbitrator for a subpoena for the records you mentioned and the arbitrator determines whether or not to allow such requests. If the information is proprietary, the other party may argue that it is privileged but if it is the subject matter of the arbitration or relevant to the decision, you may be able to gain access to that information. You should consult an attorney to assist you with this to ensure the best possible outcome. Best of luck.

    Please be sure to mark if you find the answer "helpful" or a "best" answer. (It lets us know how we are doing.) Attorney Kremer is licensed to practice in Massachusetts. Please visit her Avvo profile for contact information. In accordance with Avvo guidelines, the following disclaimer applies to all responses given in this forum: The above is NOT legal advice, and is NOT intended to be legal advice. No Attorney-Client relationship is created through the above answer.

  2. It Depends.

    If the Arbitration is a Court Ordered or other Mandatory Arbitration as part of the judicial process then Discovery is typically available.

    If the Arbitration is a private arbitration process, you might be entitled to some discovery, the extent of which is within the discretion of the Arbitrator. In that event, draft a letter / motion to the Arbitrator, state the discovery that you are seeking and the reason why the requested discovery would be relevant to the claims or defenses you have asserted. Request that the Arbitrator issue a subpoena for the records requested.

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  3. Usually arbitration is limited to document discovery

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  4. It depends on whether the arbitration was court-ordered, or if it is pursuant to a contract or agreement of the parties. If the arbitration is court-ordered then it is likely the civil rules of procedure that govern discovery will be incorporated into the arbitration, allowing you to discover these important documents.

    However, if the arbitration is pursuant to a contract or agreement between the parties, it depends on whether the contract or agreement states whether discovery will follow the state rules. One thing that often appears in a contract is a "Choice of Law" clause - which states what state's law will govern disputes or the contract. If the agreement or contract states that Mass. law governs, then I would argue or at least go further and say that Mass. law includes the rules of civil procedure which includes the discovery rules.

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