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NASD Discovery Arbitrator Pilot
August 03, 2005 by Ross Runkel at LawMemo

NASD - National Association of Securities Dealers - announces a pilot program "to address concerns about the discovery process in arbitration." Here is the full text of the announcement:

Discovery Arbitrator Pilot

Overview
On August 1, 2005, NASD Dispute Resolution will launch a voluntary, two-year discovery arbitrator pilot to address concerns about the discovery process in arbitration. A single Discovery Arbitrator will be appointed to resolve all discovery disputes prior to the hearing. These Discovery Arbitrators will not be a part of the panel assigned to hear the merits of the case; they are appointed solely to resolve the parties' discovery disputes.

The pilot, which will run for two years, will be conducted in the Southeast and Western Regional Offices, and will be available in all of the hearing locations overseen by these regions. At the end of the two-year period, we will evaluate the results of the pilot before deciding whether to extend it to the other regions.

As a voluntary pilot, only those parties that sign a Stipulation agreeing to authorize the use of a Discovery Arbitrator may avail themselves of the program. Also, only those parties represented by counsel are eligible for the pilot. After the parties sign the Stipulation, they may not unilaterally withdraw from the pilot; however, all parties may agree in writing to discontinue use of the Discovery Arbitrator.

Selection of Discovery Arbitrator
The Discovery Arbitrators are pre-selected public arbitrators currently on Dispute Resolution's roster who are lawyers with experience in resolving discovery-related disputes. After the parties sign the Stipulation agreeing to participate in this program, the Director of Arbitration will appoint an arbitrator from this roster of Discovery Arbitrators. Once the Discovery Arbitrator is assigned to a particular case, the parties may only file a Challenge for Cause or a Director's Authority to Remove to challenge the appointment of the Discovery Arbitrator.

Authority of Discovery Arbitrator
Once the hearing commences, the Discovery Arbitrator's authority ceases. At that point, the panel appointed to hear the merits of the case will decide any new discovery issues. Until the hearings commence, the panel may not review any decision rendered by the Discovery Arbitrator. Thereafter, the panel may only review the Discovery Arbitrator's prior rulings on the basis of new facts or circumstances that arose after the commencement of the hearings.

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