Is There Discovery in Arbitration? Tools, Limits, and Enforcement

Yes, there is discovery in arbitration, but it is deliberately narrower, faster, and more tightly managed than discovery in court. The Federal Arbitration Act gives arbitrators the power to compel witnesses and documents, and institutions like JAMS and the American Arbitration Association build information-exchange procedures into their rules. How much you actually get in a given case depends on three things: what your arbitration agreement says, which institutional rules apply, and how the arbitrator exercises discretion.

How Arbitration Discovery Compares to Court

Court discovery is expansive by design. Parties can request virtually any non-privileged information relevant to the claims or defenses, through interrogatories, document requests, depositions, requests for admission, and third-party subpoenas, often with few hard limits on volume. Complex cases routinely spend a year or more in discovery, and it accounts for a significant share of total legal costs.

Arbitration flips the default. Instead of broad access that parties then fight to limit, arbitration starts with a limited exchange and makes parties justify anything beyond that baseline. Arbitrators focus on information directly relevant and material to the disputed issues, not information that might conceivably lead to something useful. Fewer documents change hands, depositions are rare, and the timeline from filing to hearing is much shorter.

That tradeoff is intentional. Parties pick arbitration partly to avoid the cost and delay of full litigation discovery. The flip side is that you may not get evidence you would have had in court. If your case depends on extensive document production or deposing multiple witnesses, think carefully about whether your agreement and chosen rules will support that before agreeing to arbitrate.

What Discovery Tools You Actually Get

Document Exchange

Document exchange is the backbone. Under JAMS Comprehensive Arbitration Rules, parties must cooperate in exchanging all relevant, non-privileged documents within 21 calendar days after all pleadings are received.¹ Under AAA Commercial Arbitration Rules, the arbitrator may require parties to exchange documents they intend to rely on and, upon request, to produce documents in the responding party’s possession that are “relevant and material to the outcome of disputed issues.”² Both are far narrower than the litigation standard, which generally reaches any non-privileged relevant information whether or not a party plans to use it at trial.

Depositions

Depositions are the exception, not the rule. JAMS allows each party to take one deposition of an opposing party or of one individual under that party’s control. Additional depositions require arbitrator approval, and the arbitrator weighs the reasonable need for the information, whether other discovery options exist, and the burden on the opposing party and the witness.¹ AAA’s commercial rules do not include an automatic right to depositions at all. AAA’s own guidance notes that while depositions are “readily available in litigation, their use in arbitration should be limited consistent with the goals of arbitration as a speedy, cost effective and final means of resolving disputes.”³

Interrogatories, a staple of court litigation, are not included by default under most arbitration rules. If you want them, you generally need to say so in the arbitration agreement.

Witness and Expert Identification

Both JAMS and AAA rules require parties to identify witnesses they plan to call at the hearing as part of the initial information exchange. Under JAMS rules, parties must supplement their witness and expert identifications as new information becomes available. Witnesses or experts not previously identified generally cannot testify at the hearing unless the other side agrees or the party shows good cause for the late disclosure.¹ The same principle applies to documents: if you did not produce it during discovery, you probably cannot use it at the hearing.

Electronically Stored Information

E-discovery exists in arbitration, but it is scaled down. JAMS rules explicitly include electronically stored information in the initial exchange obligation.¹ AAA commercial rules allow the arbitrator to require electronic documents to be produced “in the form most convenient and economical for the party in possession,” with the parties agreeing on “reasonable search parameters” that balance the need for relevant material against the cost of finding and producing it.² AAA’s e-discovery guidance emphasizes relevance, materiality, and proportionality: the information must connect to a disputed issue, could actually influence the arbitrator’s decision, and justify its cost given the circumstances.⁴ There is no presumption that you will get the massive electronic production that has become standard in federal court.

What Controls How Much Discovery You Get

Three layers of authority set the scope.

The arbitration agreement comes first. Because arbitration is a creature of contract, parties can negotiate discovery terms before a dispute even arises. An agreement might cap the number of depositions, restrict document requests to certain categories, set a deadline for completing all discovery, or expand discovery beyond what institutional rules would otherwise allow. Courts generally enforce those negotiated terms as long as neither side was overreached during bargaining.

If the agreement does not spell out discovery procedures in detail, institutional rules fill the gap. JAMS provides a structured baseline: mandatory document exchange within 21 days, one deposition per side as of right, and a continuing obligation to supplement disclosures.¹ AAA’s commercial rules are more discretionary, giving the arbitrator broad authority to manage information exchange but not mandating specific discovery as a matter of right.² JAMS itself notes that its arbitrators “adapt arbitration discovery to meet the unique characteristics of the particular case.”⁵

The FAA sits behind both. It does not dictate the specifics of discovery but provides the enforcement mechanism. Section 7 gives arbitrators the power to “summon in writing any person to attend before them” as a witness and to bring documents “which may be deemed material as evidence in the case.” If a summoned person refuses, the arbitrators can petition a federal district court to compel attendance or hold the person in contempt.⁶

The Arbitrator’s Discretion

Arbitrators have wide latitude over discovery, and experienced ones use it to keep the process from ballooning. Unlike a judge applying the Federal Rules of Civil Procedure, an arbitrator can tailor discovery to the specific dispute with few constraints. A $50,000 contract case will not get the same discovery as a $50 million construction case.

That discretion cuts both ways. An arbitrator can limit discovery one party views as essential, and courts rarely second-guess the decision. AAA’s guidance states that “discovery decisions should be proportional to the size and complexity of the matter being heard.”³ Under unusual circumstances, an arbitrator can order more expansive discovery but may require the requesting party to pay for it.

When discovery disputes arise, JAMS rules call for a conference with the arbitrator, by phone or in person, who then decides the issue.¹ Most experienced arbitrators prefer that parties work out disagreements themselves first. Running to the arbitrator over every discovery fight signals that your positions may not be reasonable, and that impression can carry into the hearing.

Attorney-client privilege and work product protection apply, but handling them is less structured than in court. JAMS rules reference “non-privileged” documents throughout, making clear that privileged material is excluded from the exchange obligations.¹ Unlike federal litigation, there is typically no automatic requirement to produce a detailed, document-by-document privilege log, and arbitrators often resolve privilege disputes on a categorical basis.

Getting Documents From Non-Parties

This is where arbitration discovery gets complicated, and it is worth flagging because many parties assume non-party discovery works like a court subpoena. It does not, and the answer depends on where you are.

Section 7 lets arbitrators summon witnesses to appear “before them,” which courts have read to mean at the hearing itself. Whether that same power extends to pre-hearing document production from non-parties has split the federal circuits. The Second, Third, and Ninth Circuits have held that Section 7 does not authorize pre-hearing document subpoenas to non-parties. As the Second Circuit put it, “documents are only discoverable in arbitration when brought before arbitrators by a testifying witness.”⁷ The Eighth Circuit reached the opposite conclusion. In the restrictive circuits, the common workaround is to subpoena the non-party to appear at the hearing itself and bring the documents, which is cumbersome and can delay proceedings.

What Happens If a Party Stonewalls

Ignoring discovery obligations in arbitration carries real consequences. When a party willfully refuses to comply with an arbitrator’s discovery order, the arbitrator has several tools. Under both AAA consumer and commercial rules, sanctions for willful noncompliance include drawing adverse inferences against the non-compliant party, excluding evidence or submissions, and shifting costs. An adverse inference means the arbitrator assumes the missing evidence would have been unfavorable to the party that withheld it. That alone can be case-changing.

At the extreme end, some institutional rules allow an arbitrator to dismiss claims or defenses entirely for material and intentional noncompliance, though typically only after lesser sanctions have failed.

Misconduct can also follow a party past the award. Under 9 U.S.C. § 10, a federal court can vacate an arbitration award “procured by corruption, fraud, or undue means.” A party that deliberately hides material evidence during discovery and wins the arbitration could see that award thrown out. Courts can also vacate when arbitrators themselves commit misconduct by refusing to hear “evidence pertinent and material to the controversy.”⁸ The arbitrator’s discovery decisions matter not just at the hearing but for the durability of the final award.

Fixing Discovery Problems Before They Happen

Most discovery problems in arbitration trace back to the arbitration agreement. If the agreement says nothing about discovery, you are at the mercy of the institutional rules and the arbitrator’s discretion. That may be fine for a straightforward commercial dispute. It is a gamble for complex cases where you know you will need significant document production or depositions to prove your claims.

When drafting or negotiating an arbitration clause, consider specifying the number of depositions each side may take, whether interrogatories are permitted, deadlines for completing discovery, and whether e-discovery protocols should be established at the preliminary hearing. You can expand discovery beyond institutional defaults if both parties agree. You can also restrict it: document exchange only, no depositions, if cost control is the priority.

The time to negotiate discovery rights is before a dispute arises, when both sides have equal bargaining power and no one knows who will need what evidence. Once a dispute is live, the party with the stronger paper trail has every incentive to resist broad discovery, and the arbitrator’s default position will lean toward efficiency over thoroughness.

1
JAMS. JAMS Comprehensive Arbitration Rules and Procedures
2
American Arbitration Association. AAA Commercial Arbitration Rules – Rule R-23
3
American Arbitration Association. AAA Discovery Best Practices for Construction Arbitration
4
American Arbitration Association. E-Discovery Considerations for Construction Arbitrations
5
JAMS. Arbitration Discovery Protocols
6
Office of the Law Revision Counsel. 9 USC 7 – Witnesses Before Arbitrators
7
Justia Law. Life Receivables Trust v Syndicate 102 at Lloyds of London
8
Office of the Law Revision Counsel. 9 USC 10 – Vacation of Awards