Tricks and Traps of Pre-Arbitration Discovery

By Pulliam, Jessica B. | The Review of Litigation, Winter 2013 | Go to article overview

Tricks and Traps of Pre-Arbitration Discovery


Pulliam, Jessica B., The Review of Litigation


I. INTRODUCTION 91

II. SCOPE OF PRE-SUIT DISCOVERY VARIES ACROSS JURISDICTIONS 92

A . Pre-suit discovery only for preservation of evidence 92

B. Limited investigatory pre-suit discovery 94

C. Broad investigatory pre-suit discovery 95

III. THE CONFLICT BETWEEN PRE-SUIT DISCOVERY AND AGREEMENTS TO ARBITRATE 97

A. Discovery to determine arbitrability 98

B. Discovery to preserve evidence 99

C. Investigatory discovery 102

IV. OVERCOMING BARRIERS TO ENFORCING ARBITRATION AGREEMENTS IN THE FACE OF A PETITION FOR PRE- ARBITRATION COURT-ORDERED DISCOVERY 105

A . Dealing with the question of jurisdiction 106

B. Establishing that the agreement to arbitrate covers the petitioner 's quest for pre-suit discovery 1 09

C. Addressing the policy rationale behind rules allowing for investigatory pre-suit discovery 1 1 1

V. CONCLUSION 1 14

I. INTRODUCTION

Texas is at the forefront of allowing potential litigants to investigate their claims prior to filing suit. The Texas pre-suit discovery rule stands in contrast to the federal rule. The federal regime allows pre-suit discovery only for the purpose of preserving evidence that may otherwise be lost. ' Academics and commentators have suggested that Texas's approach to pre-suit discovery should be adopted more broadly.2 They claim that access to investigatory presuit discovery has an important relationship with the access to justice.3 They also contend that pre-suit investigatory discovery rules lead to early resolution of disputes and may avoid the expense of litigation.4

But what happens when the potential dispute is governed by an agreement to arbitrate? Should a party be entitled to invoke the judicial process to investigate potential claims when it has agreed to submit such claims to arbitration?

When the goals of pre-suit investigatory discovery and the right to arbitrate collide, this article argues that the touchstone should always be the intent of the parties to the arbitration agreement. This is consistent with the Federal Arbitration Act, the "primary purpose [of which] is to ensure private agreements to arbitrate are enforced according to their terms, no more, no less."5

II. SCOPE OF PRE-SUIT DISCOVERY VARIES ACROSS JURISDICTIONS

Almost all jurisdictions allow potential parties to seek discovery prior to the filing of claims. In most jurisdictions, the rules allowing for such pre-suit discovery are limited to discovery for the purpose of preserving evidence. In a few states, of which Texas is the most representative, parties may petition the court for pre-suit discovery for the broad purpose of investigating a potential claim. A minority of states take the middle-ground approach by allowing investigatory pre-suit discovery for certain limited purposes.

A. Pre-suit discovery only for preservation of evidence

Federal Rule of Civil Procedure 27 typifies the majority approach. Under Rule 27, a party may petition a court for permission to take a deposition "to perpetuate testimony about any matter cognizable in a United States court."6 Federal courts have stated that "[u]nlike other discovery rules, Rule 27(a) allows a party to take depositions prior to litigation if it demonstrates an expectation of future litigation, explains the substance of the testimony it expects to elicit and the reasons the testimony is important, and establishes a risk that testimony will be lost if not preserved."7 Federal courts construe this rule narrowly and allow a pre-suit deposition only when the petitioner shows that the testimony may be lost if not taken immediately.8 Accordingly, courts have observed that Rule 27 is not intended for use in investigating a potential claim or "as an aid to help counsel frame a complaint."9

Most states have adopted a similar rule and have interpreted it accordingly. Many states, including Alaska, Arizona, Arkansas, California, Florida, Iowa, Kansas, Michigan, Minnesota, New Mexico, Rhode Island, and Vermont, have rules that are substantively identical to Rule 27. …

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