“Criminalizing” Depositions in Arbitration

Civil litigation–style deposition practice is preventing commercial arbitration from reaching its full potential as an economical, efficient alternative to a civil lawsuit. Although there is consensus among alternative dispute resolution experts that meaningful limits must be imposed on arbitration discovery to unlock the efficiency benefits of arbitration, depositions continue to feature prominently in commercial arbitrations for at least three reasons. First, civil litigators are addicted to depositions. They reflexively propose overdone deposition practice in arbitrations that replicates their litigation experience. Second, arbitrators may hesitate to disallow deposition discovery out of fear that their awards will be vacated for failure to hear material and pertinent evidence. Third, arbitrators are justifiably concerned that they will be punished in the arbitral marketplace if they deny the deposition requests of the parties and lawyers that select them. These dynamics dictate that consequential change will remain elusive in this area unless the rules regarding deposition practice in commercial arbitrations are amended. While these rules currently are more restrictive in some ways than the rules of civil procedure, they are toothless. They often allow some discovery depositions as a matter of right and grant the arbitrator discretion to permit an unlimited number of discovery depositions upon a modest showing of “cause” or “need.” This Article is the first to propose that the rules of federal criminal procedure—which flatly outlaw discovery depositions—be used as a model for modifying arbitration rules concerning the availability of discovery depositions. Doing so will make arbitration more efficient without meaningfully compromising the ability of arbitration parties to pursue and defend their claims. The fact that prosecutors and defense counsel routinely try high-stakes criminal cases without the benefit of discovery depositions provides strong evidence that arbitration parties can effectively represent their interests without the need for discovery depositions. Further support for this proposal can be found in the case law which holds that the cross-examination of prosecution witnesses by criminal defense counsel at trial (without the benefit of a prior deposition) satisfies a criminal defendant’s Confrontation Clause rights. If criminal defendants can be deprived of their liberty without deposing the prosecution’s witnesses prior to trial, it is fair to require the parties to an arbitration to examine witnesses at a hearing without the added layers of delay and cost associated with discovery depositions.