ABTL Report - Fall 2026 Edition - Flipbook - Page 8
ABTL - Los Angeles
Fall 2026
matter of the arbitration were pending before a superior court of
this state in a civil action other than a limited civil case, subject
to the limitations as to depositions set forth in subdivision (e) of
this section.”2 (Code Civ. Proc., § 1283.05, subd. (a).) SB 940
also amended Code of Civil Procedure section 1282.6 to clarify
that third-party subpoenas and subpoenas duces tecum for the
purposes of discovery shall now be issued as a matter of course
in all CAA-governed arbitrations.
A SEA CHANGE? C.C.P. § 1283.05 AMENDMENT BROADENS DISCOVERY
RIGHTS FOR LITIGANTS IN ARBITRATION...continued from Page 1
issues remain unsettled, it is clear that new section 1283.05
embodies a decreased emphasis on ef昀椀ciency in favor of making
all relevant evidence available to the arbitrating parties.
1. Prior Law
Prior to January 1, 2025, former sections 1283.05 and 1283.1
allowed parties to specify in their arbitration agreements that
discovery in the arbitration would be coextensive with discovery
in California civil trial court. However, other than in personal
injury and wrongful death cases, to which section 1283.05
applied as a matter of law pursuant to former section 1283.1,
subdivision (a), parties were required to expressly reference
section 1283.05 in their arbitration agreements in order to avail
themselves of that statute’s expansive discovery rights under
former section 1283.1, subdivision (b). Absent such “magic
words,” discovery would proceed according to the parties’
agreement, which could be express language in the arbitration
agreement regarding the scope of discovery or incorporation
of the rules of a particular ADR provider such as the AAA or
JAMS.
These amendments preserved one key limitation on discovery
in arbitration: that “[d]epositions for discovery” still require
permission from the arbitrator. (Code Civ. Proc., § 1283.05,
subd. (e).)
3. Applicability Issues
Practitioners who arbitrate in California will need to understand
the effect of new section 1283.05 on issues that regularly arise
in disputes over arbitrability. This section explores several such
issues from the perspective of each side of the issue. For the
remainder of this article, parties to arbitration are divided into
two conceptual groups: “Narrowers,” that is, parties seeking to
narrow the scope of discovery and make it less available; and
“Expanders,” that is, parties seeking to expand the scope of
discovery and make it more available.
The results of the previous statutory scheme were predictable.
Where the parties to an arbitration agreement possessed unequal
bargaining power in connection with the agreement, as often
happens in the consumer or employment context, the resulting
arbitration agreements rarely referenced section 1283.05. This
is because the party with greater bargaining power (employers,
website operators, and others subject to suit by consumers in
arbitration), who typically drafts the agreement and presents
it on a take-it-or-leave-it basis, also typically possesses more
information and evidence and therefore stands to bene昀椀t from
rules narrowing the availability of discovery in arbitration.
Because expanded discovery in arbitration would typically
bene昀椀t the employee- or consumer-plaintiff who had little if any
ability to negotiate the terms of the arbitration agreement, the
party imposing the agreement had little incentive to include a
reference to section 1283.05.
As discussed, in employee arbitrations, consumer arbitrations,
and most other arbitrations where there is unequal bargaining
power, the party with greater bargaining power typically
imposes the agreement, has an information advantage, and is
the respondent in arbitration who bene昀椀ts from that information
advantage. Not surprisingly, these parties are in the Narrower
camp. It follows that the claimant, often an employee or
consumer, is typically an Expander.
Where there is parity of bargaining power, which side, if
any, is a Narrower or an Expander will depend heavily on the
particular facts of each dispute.
Express Incorporation of ADR Provider Rules
For arbitration agreements that expressly incorporate
the rules of an ADR provider such as the AAA or JAMS, an
immediate question is whether new section 1283.05 overrides
the express incorporation of a speci昀椀ed ADR provider’s rules.
Under JAMS rules, parties are allowed only one deposition by
right, and interrogatories, requests for production, and requests
for admission are permitted only upon a showing of good
cause. The AAA commercial arbitration rules likewise do not
2. New Law as of January 1, 2025
As of January 1, 2025, California SB 940 (2024) repealed
section 1283.1 and amended section 1283.05 to provide that
parties in all arbitrations have “the right to take depositions
and to obtain discovery regarding the subject matter of the
arbitration, and, to that end, to use and exercise all of the same
rights, remedies, and procedures, and be subject to all of the
same duties, liabilities, and obligations in the arbitration with
respect to the subject matter thereof, as provided in [the Civil
Discovery Act and additional subpoena statutes], as if the subject
SB 940 also made changes to consumer arbitrations and imposed new obligations
on neutrals and ADR providers. These changes, while important, are outside the
scope of this article.
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