2026 - Volume 2 - Summer - Flipbook - Page 9
-Third-Party Discovery: Continued from page 8-
-Wish We Knew: Continued from page 3-
Sec. Life and ruled that section 7 also provided an arbitrator the authority to enforce a pre-hearing deposition
subpoena against a third-party. Int’l Seaway Trading
Corp. v. Target Corp., No. 0:20-mc-00086-NEB-KMM,
2021 U.S. Dist. LEXIS 31755, at *7 (D. Minn. Feb. 22,
2021).
consider how you will raise that issue early to the court.
2. Look at the Rules of Court, Local Rules, and
Judge’s Policies/Procedures
Rules of Court instruct counsel and parties how to proceed in court. A court’s local rules further refine how parties and counsel should proceed in that court. Finally, a
Judge’s Policies/Procedures often set forth the specific
judges’ expectations. To avoid unnecessary filing rejections or consternation from the judge, review the applicable rules of court, local rules, and judge’s policies and/or
procedures. After you review them, bookmark them
online for easy reference throughout the case.
In sum, while an arbitrator’s authority to enforce third
-party discovery is more limited under the FAA than under the CAA, some federal courts have shown a willingness to expand such authority.
Conclusion
Along with other considerations in deciding whether
to arbitrate or litigate in court, lawyers should evaluate
whether third-party discovery is necessary to prove their
clients’ claims or defenses. Just as the importance of
third-party discovery can vary case-by-case, an arbitrator’s authority to enforce third-party discovery subpoenas can vary by applicable statute and across jurisdictions. Given the evolving legal landscape, lawyers
should carefully consider these recent developments
when drafting arbitration agreements or advising their
clients on arbitration-related issues.
3.
Observe the Judge’s Pretrial Conference
Observe the judge’s pretrial conference, also known as
a trial management conference. In Orange County Superior Court, Local Rule 317 informs the parties what needs
to be prepared, exchanged, and filed prior to the trial. A
pretrial conference may give you a window into what matters to the judge.
In federal court, carefully read the district court judge’s
case management orders to determine if the discovery cutoff date is the last day to file discovery motions or the last
day to hear discovery motions. Many district court judges
have unique ways of handling dispositive motions, preparation for the pretrial conference, and motions in
limine. Reviewing the scheduling order early and thoroughly will enable you to build enough time into your
pretrial schedule.
Chris Wang in an associate at Umberg/Zipser and
focuses his practice on complex commercial litigation.
SAVE THE DATES
4.
September 9th
Discovery Plan
At the beginning of the case, create a discovery plan.
An effective discovery plan can posture the case for settlement or trial. Weil & Brown, Cal. Prac. Guide: Civ.
Proc. Before Trial (The Rutter Group June 2025 Update)
§ 8:349. The discovery plan will inform you as to what
evidence you will need to obtain to prove claims or defenses and to disprove the opposite side’s claims or defenses. It will also help you in selecting the appropriate
discovery tool to obtain the information needed. A discovery plan should address the
