Originally prepared by Lucia Benabentos of the Cornell Law School Securities Law Clinic.
The discovery process is the phase in which both parties research and conduct additional investigation on the fact and events giving rise to the claim. During the discovery phase, parties will have access to information which was inaccessible to them before. While the rules provide for mutual cooperation in the exchange of documents and information to expedite the arbitration, it is widely known that most parties will attempt to avoid disclosing unfavorable information. Measures have been put in place to compel discovery including orders from the panel directing one party to disclose certain information, or even sanctions for difficult parties.
Subpoenas and Orders to Appear or Produce are also available to parties. These allow the parties to force production of either a witness or a document. Witnesses may be deposed in order to obtain a written record of their statements.
It is important to note that this phase of the process can be extremely costly, depending on the need for information. Thousands of dollars can be accumulated as attorneys spend hundreds of hours sifting through boxes of documents, making copies and scanning documents, using mailing services, etc.
The following lists provided by FINRA’s Discovery Guide provide an example of the type of document lists that may be required in any one particular case. Specific lists are provided depending on the type of claim being made (See pages 6 through 11 of the Discovery Guide). These includes lists of documents for all customer cases, for cases for failure to supervise, for misrepresentation or omissions, negligence or breach of any fiduciary duties, unauthorized trading, and unsuitability claims.