Discovery

Obtaining Discovery From Non-parties For Use In Arbitration

Party discovery in arbitration is quite limited, particularly in comparison to the scope of discovery permitted by the Federal Rules of Civil Procedure. However, to what extent can an arbitrator order a third party - who, it should be noted, never agreed to arbitrate -- to appear and testify at an arbitration or to produce documents or other tangible items for use as evidence at an arbitration?

The Public Records Law: A Powerful Pre-Discovery Tool

The Massachusetts Public Records Law (or PRL) provides an often overlooked, simple, cost effective and powerful tool for litigants to investigate claims and gather pertinent documents even before the commencement of a lawsuit. Like its federal analogue the Freedom of Information Act (or FOIA), the Massachusetts PRL allows anyone to request any records generated, received or maintained by a Massachusetts governmental agency, department, or subdivision, whether in electronic or paper form, including computer records, electronic mail, video and audiotapes. I have found that in many business disputes, using the PRL, I can quickly and inexpensively uncover valuable information that can inform strategy and save my client the need to chase the same material via the formal litigation discovery process.

Promoting Efficient Discovery in Arbitration: the ICDR Guidelines Concerning Exchanges of Information

Countries with different legal traditions have vastly dissimilar approaches to discovery and the exchange of information. Whereas common law countries (and the U.S. in particular) favor broad discovery and the production of vast amounts of documents, European and Latin American countries generally disfavor that approach and seek to limit document production. Because of these differences, disputes as to the scope of discovery in international arbitration can be contentious, expensive, and very time-consuming.

Obtaining Discovery From Massachusetts Witnesses For Use In An Out-of-State Action

It is not uncommon for litigants in proceedings pending outside of Massachusetts to need documents or testimony from witnesses who reside in Massachusetts. Even when the witness is willing to provide the requested information voluntarily, it is wise to serve a subpoena to minimize the delay if the witness changes his mind and decides not to cooperate. Indeed, even a "friendly" subpoena carries the threat of contempt sanctions for noncompliance and therefore serves as a powerful deterrent if the witness gets cold feet. A subpoena also has the advantage of preventing the witness from appearing predisposed to provide evidence favorable to the requesting party as may be the case if the evidence is voluntarily provided.

Obtaining Discovery From Massachusetts Witnesses For Use In An Out Of State Action

It is not uncommon for litigants in proceedings pending outside of Massachusetts to need documents or testimony from witnesses who reside in Massachusetts. Even when the witness is willing to provide the requested information voluntarily, it is wise to serve a subpoena to minimize the delay if the witness changes his mind and decides not to cooperate. Indeed, even a "friendly" subpoena carries the threat of contempt sanctions for noncompliance and therefore serves as a powerful deterrent if the witness gets cold feet. A subpoena also has the advantage of preventing the witness from appearing predisposed to provide evidence favorable to the requesting party as may be the case if the evidence is voluntarily provided.

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