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.
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 firstname.lastname@example.org
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