Arbitral Discovery of Non-Parties

This article argues that the broad power approach is the better reasoned of the two. Timely discovery of important information is vital in any dispute. Further, fair results should be the goal of any dispute resolution process. The possessor of the pertinent information, i.e., whether it is held by parties or non-parties, should be irrelevant.

Part II of this article describes the differences between discovery in litigation and discovery in arbitration. Part III examines the limited power approach to prehearing discovery, which restricts the power of an arbitrator to compel non-party participation in discovery to the actual hearing. Part IV examines the broad power approach, which gives arbitrators the power to compel non-parties to participate in pre-hearing discovery. Part V analyzes each approach, highlighting the weaknesses of the limited power approach and the strengths of the broad power approach.

Part VI proposes that courts adopt the broad power approach. Recognizing, however, that the advantages of arbitration over litigation derive in large part from the curtailing of discovery, Part VI also proposes that arbitrators be given the discretion to limit non-party discovery as they deem appropriate.