FINRA Discovery Guide

Discovery has always been a problem in litigation matters. In broad strokes, plaintiffs want to see every document that might possibly have any bearing on any issue in the case, and defendants don’t want to produce a single document. The courts and arbitration panels spend a significant amount of time trying to sort it all out.

In FINRA arbitration, there is almost always a motion to compel one side or the other to produce documents and information, with attendant delays in the discovery process.

In 2003 the NASD attempted to create lists of documents that should be produced in most cases, and in doing so, ignored the fact that cases are fact specific, and we cannot have a list of documents for all cases.

The Guide explicitly acknowledges this, and states that parties and arbitrators should recognize that not all firms have the same business
operation model and certain items on the Lists may not apply to a particular case when the firm’s business model (e.g. full service firm, discount broker, clearing firm, or online broker) is taken into consideration. In addition, certain items on the Customer List may not apply to a
particular case depending on the claims asserted.  Parties can object to items in the Guide, but must do so in a written objection, within the time frames set forth in the Customer Code.

The Discovery Guide was a step forward, and over the years it has evolved. So long as parties and arbitrators keep in mind that the Guide is just that – a Guide – and not a list of what must be produced, or an exhaustive list of everything that should be produced, the Guide will continue to preempt some discovery disputes.

The FINRA Discovery Guide


Mark Astarita is a securities attorney who represents investors and financial professionals across the country in their arbitration, litigation and regulatory matters. He is a partner in the boutique law firm of Sallah Astarita & Cox. You can email Mark with questions at mja@sallahlaw.com



You may also be interested in:

  • Removing Customer Complaints and Firm Disputes from BrokerCheck
    False CRD Disclosures can ruin your practice, if not your career. Call Sallah Astarita & Cox, LLC today  at 212-509-6544 to learn if your complaints and termination disclosures can be permanently removed from your CRD report, and BrokerCheck. We have been helping brokers across the country to remove false reports for years. Call now before ...
  • Can I Take My Client Information When I Leave My Firm?
    When changing firms, and moving between two firms that are part of the Broker Recruiting Protocol, can the broker take client account numbers with her. We get that question a lot. Under the Protocol a broker may take only the client name, address, phone number, email address, and account title of the clients that she serviced ...
  • SEC Subpoenas – Tips for Responding
    How you respond to an SEC subpoena makes a difference. Tips from an experienced securities attorney.
  • UBS YES Losses?
    Investors who lost money in UBS’ Yield Enhancement Strategy (YES) may be able to recover their losses
  • Recover GPB Capital Losses
    After inquiries by the SEC, FINRA and the FBI, GPB Capital has announced significant losses in the value of its investment funds.  Two of its funds, GPB Holdings II and GPB Automotive Portfolio, have reported losses of 25.4% and 39%, respectively according to InvestmentNews.com GPB Capital Holdings is a New York based alternative asset management firm with approximately ...
  • Regulation Best Interest (Regulation BI) Compliance Due June 30, 2020
    Compliance with Regulation Best Interest (Regulation BI) and Form CRS is due on June 30, 2020 for all registered broker-dealers and investment advisers. See Introduction to Regulation Best Interest Regulation Best Interest at FINRA Regulation Best Interest (BI) information at the SEC website
  • Lessons in Zoom meeting safety: Useful tips for advisors and clients during the coronavirus pandemic 
    The Zoom videoconferencing app has become almost as pervasive as the virus itself; millions of workers, friends and family members now use it daily to communicate in as close to in-person fashion as we can get under the social distancing regime. However, like all technology, there can be some risk. Here are a few simple ...
  • DOJ Closes Its Senator Insider Trading Investigation, Except for Burr
    As we posted last week, the FBI was apparently investigating Senators Loeffler, Feinstein, Inhofe and Burr for possible insider trading. Yesterday it announced that it was closing the investigation of all except Burr. It is important to note that there were probably two investigations going on, one by the FBI and one by the SEC. The ...
  • Another Whistleblower Award – $18 Million to Whistleblower
    The SEC awarded more than $18 million to a whistleblower whose significant information prompted an examination that resulted in an important enforcement action. The SEC has awarded over $448 million to 81 individuals since issuing its first award in 2012.  Whistleblowers may be eligible for an award when they voluntarily provide the SEC with original, timely, ...