Document Production and Witness Statements in Arbitration

Arbitration is supposed to be the “efficient” sibling of litigation. You knowthe one who shows up on time,
doesn’t start a 47-email thread about lunch plans, and (mostly) avoids turning every dispute into a discovery
endurance sport. But arbitration still runs on evidence. And evidence, inconveniently, lives in documents and
in people’s memoriesboth of which have a habit of getting fuzzy right when money is on the line.

That’s why document production in arbitration and witness statements are a big deal.
Done well, they narrow issues, sharpen settlement pressure, and make hearings shorter and clearer.
Done badly, they create a chaotic paper blizzard and witness testimony that reads like a screenplay nobody requested.

The Big Picture: Arbitration Isn’t Court (But Facts Still Matter)

In U.S. litigation, discovery can feel like a cross-country move where everyone insists on inspecting every box.
Arbitration typically aims for something more like: “Bring the boxes that actually matter, label them, and please
don’t show up with a warehouse.”

The key difference is control. Courts operate under detailed procedural rules and broad discovery norms.
Arbitrationsespecially under major U.S. provider rulestend to give the tribunal (the arbitrator or panel) wide
discretion to tailor information exchange to what’s relevant, material, and proportionate.
Translation: you don’t get everything you want; you get what you can justify.

Document Production in Arbitration: Finding the “Goldilocks” Scope

Start With the Rules, Then Expect a Custom Roadmap

Most arbitrations begin with a preliminary conference where the arbitrator helps set the schedule and the
“rules of engagement” for exchanging information. Providers like AAA and JAMS explicitly contemplate early
planning for document exchange and discovery. Some systems encourage voluntary, informal exchange first, with
the tribunal stepping in when parties can’t behave like adults in a professional setting.

In practical terms, you’ll usually see a procedural order or scheduling order that answers:
what must be produced, by when, in what format, and how disputes
about production will be resolved. Think of it as the operating manual nobody reads until something breaks.

Relevance + Proportionality: Ask for What You Can Explain With a Straight Face

Arbitrators tend to reward focused requests and punish “kitchen sink” fishing expeditions. If your request sounds
like “every email, text, and sticky note from 2016 to present,” expect questions like:
Why? From whom? How does this move the needle? How much will it cost?

A strong arbitration document request usually:

• Targets key issues (breach, causation, damages) rather than general curiosity.
• Names custodians (specific people/roles) instead of entire departments.
• Uses date ranges tied to contract milestones, project phases, or events.
• Explains materiality in one or two crisp sentences.

If you’re opposing production, “It’s burdensome” is not a magic spell. Arbitrators tend to respond better to
concrete limits: alternative sources, narrower custodians, sampling, phased discovery, or cost-shifting proposals.

E-Discovery Without the Dumpster Fire

Electronically stored information (ESI) is where arbitration can either stay efficientor accidentally cosplay as
federal court litigation. Many tribunals push parties to agree early on:
search terms, custodians, email threading, deduplication, file types, and production format (native files vs. PDF,
metadata fields, and whether there will be a load file).

Here’s a practical approach that tends to work:

1. Start with a document map: identify systems (email, Teams/Slack, shared drives, CRM, accounting).
2. Pick the 3–7 custodians that matter: the deal people, the project lead, the finance owner.
3. Use phased production: core contract files first; targeted ESI second; everything else only if needed.
4. Negotiate sensible search terms: fewer, better terms beat 120 terms that retrieve the internet.

The goal is proportionality: enough ESI to test the story, not so much that you spend the budget proving the sky is blue.

Privilege and Confidentiality: “Yes, You Have to Explain the Withholding”

Privilege fights happen in arbitration tooespecially when business advice and legal advice are tangled up in the
same email chain like headphone cords in a pocket. A common tribunal expectation is that parties will:
(1) withhold privileged documents, but (2) provide enough information (often via a privilege log or similar list)
so the other side can evaluate the claim without guessing.

Confidentiality is another frequent feature. Many arbitration regimes assume private hearings, and parties often
agree to protective orders governing sensitive business documents (pricing, source code, trade secrets, customer data).
If your case involves proprietary material, address confidentiality earlywaiting until production day is how you end up
negotiating a protective order at 11:48 p.m. for a deadline at midnight. Nobody wins that game.

Third-Party Documents and Subpoenas: Possible, But Not Always Fun

Sometimes the most important documents sit with a non-party: a former vendor, a bank, a consultant, or a key ex-employee.
In U.S. domestic arbitration, tribunals may have subpoena tools (and courts may assist in enforcing them), but the details can
be legally and practically tricky. Even when you can compel documents, you still have to manage scope, timing, and objections.

Strategic tip: if third-party evidence is crucial, raise it at the preliminary conference. Tribunals are more receptive to
planned, targeted third-party production than last-minute scramble subpoenas that smell like panic.

Witness Statements: Written Testimony With a Purpose

Why Tribunals Like Written Witness Statements

Written witness statements are often used to replace live direct examinationespecially for fact witnesses under a party’s control.
The logic is simple: hearings are expensive, and listening to a witness read their own story out loud is not the best use of anyone’s time.
Written statements let the tribunal and the other side see the testimony earlier, identify what actually matters, and focus the hearing
on cross-examination and the key disputes.

This also changes case strategy. When witness statements come in early, your case theory gets stress-tested earlier.
That can reduce wasteful document requests because the parties can see what facts are truly in play.

What a Strong Witness Statement Looks Like

A good witness statement is not a closing argument in disguise. It’s organized, factual, and anchored to documents.
Think “clear narrative with receipts,” not “dramatic monologue.”

Common best practices:

• Use short, numbered paragraphs so everyone can cite them cleanly.
• Separate personal knowledge (“I attended the meeting”) from inference (“I assumed they agreed”).
• Cite key exhibits (contract sections, emails, change orders, meeting notes).
• Avoid exaggeration. Arbitrators can smell “too perfect” testimony from across the Zoom screen.
• Address the hard points. If there’s a bad email, explain it instead of pretending it’s fan fiction.

The “Too Many Lawyers in the Kitchen” Problem

Yes, counsel usually helps draft. But over-lawyering a witness statement can backfire. When it sounds like a brief,
cross-examination gets easier:
“You wrote this, correct?” “Or did your counsel write this?” “So what words are actually yours?”

The sweet spot is collaborative drafting that preserves the witness’s voice and stays grounded in what the witness
can credibly testify to. If the statement is 37 pages long and contains phrases like “aforementioned” and “hereinafter,”
you may have crossed into “robot witness” territory.

Cross-Examination: Written Direct, Live Testing

Written witness statements don’t eliminate live testimony; they reshape it. A common hearing format is:
(1) witness confirms their statement, (2) short follow-up questions if needed, then (3) cross-examination.
Tribunals often expect that if a witness provides a statement, they should be available for examination, or the tribunal
may reduce the weight given to the statement. That’s fairness: if you want the tribunal to rely on testimony, the other side
gets a real chance to test it.

How Documents and Witness Statements Work Together

A Typical (Efficient) Timeline

While every arbitration is different, a well-managed process often looks like this:

1. Preliminary conference: agree on scope of document production, confidentiality, and a schedule.
2. Targeted document exchange: core documents first; disputes handled quickly by the tribunal.
3. Witness statement exchange: claimant statements, then respondent statements, then rebuttals if allowed.
4. Hearing: focus on cross, key exhibits, and expert issuesless time on “background reading.”

A Concrete Example: The Software Implementation Dispute

Imagine a company hires a vendor to implement an ERP system. The rollout goes badly: missed deadlines, change orders,
finger-pointing, and a final invoice that arrives with the confidence of a luxury yacht catalog.

Smart document production here would prioritize:
the statement of work, change orders, project plans, meeting minutes, status reports, key email threads,
and the vendor’s internal escalation notes for the critical failure period. Instead of demanding “all communications,”
the requesting party might target five custodians: the project manager, the technical lead, the account executive,
and two decision-makers.

Then witness statements would do the heavy lifting:
the project manager explains timeline and decisions; the finance witness explains damages and invoices; the technical lead
explains root-cause and remediation. Cross-examination tests credibility against the documents:
“Your statement says the client approved the change ordershow me where.” That’s where arbitration becomes efficient:
documents set the lane lines; witness testimony drives the car.

Practical Tips to Keep Arbitration Lean (and Persuasive)

• Use a “Redfern-style” schedule for document requests: request, relevance, objections, and tribunal ruling in one table.
• Agree on production format early (native vs. PDF, metadata, Bates numbering).
• Phase discovery so you don’t spend money on documents you won’t use.
• Match witness statements to the documents and cite exhibits like you mean it.
• Don’t save key issues for the hearing. Arbitrators appreciate clarity before they’re “on the clock.”

Common Mistakes (That Cost Real Money)

1) Overbroad Requests That Trigger War

If your requests are too broad, you’ll get either (a) a fight, (b) a dump, or (c) both. None of those helps you win.

2) Document Dumps That Hide the Ball

Producing 80,000 pages with no structure is not “cooperation.” It’s performance art. Tribunals notice.
Organize productions so the other side can actually find what matters.

3) Witness Statements That Don’t Survive a Single Email

The fastest way to lose credibility is to tell a story that the documents contradict.
Before finalizing witness statements, do a document reconciliation: identify the “problem exhibits” and address them head-on.

4) Privilege Sloppiness

Under-logging invites disputes. Over-logging wastes time. The best approach is consistent privilege calls, practical descriptions,
and a clear clawback process for accidental production.

Conclusion: Evidence Wins CasesEven in “Efficient” Forums

Arbitration doesn’t eliminate discovery; it refocuses it. The tribunal wants a process that is fair, fast, and cost-appropriate.
The parties should aim for document production that is targeted and proportionate, paired with witness statements that are factual,
readable, and honestly connected to the record.

If you do it right, your hearing becomes what it should be: a sharp test of the key disputesnot a live reenactment of an inbox.

Practical “War Stories” and Lessons Learned (About )

Below are common, real-world patterns practitioners often encounter in arbitration. Consider them field notes from the trenches
(not legal advice, and definitely not an invitation to repeat the same mistakes with enthusiasm).

War Story #1: The “Email Volcano.” One side insisted they were being “transparent” by producing everythingliterally everything.
Tens of thousands of emails arrived with minimal labeling. The opposing team spent weeks hunting for the handful of messages that mattered,
like archaeologists searching for a gold coin in a sandbox the size of Nevada. The tribunal eventually ordered the producing party to provide
targeted re-productions by custodian and timeframe. Lesson: dumping data is not the same as producing evidence. If your production requires
a support group and a flowchart, it’s probably too messy.

War Story #2: The Witness Statement That Tried Too Hard. A statement arrived that sounded like a law review article.
It had phrases like “pursuant to the foregoing” and “it is respectfully submitted.” Cross-examination was… brief. The witness admitted they
didn’t draft it, didn’t understand parts of it, and hadn’t even reviewed several referenced exhibits. The tribunal didn’t need fireworks; the
credibility loss was self-inflicted. Lesson: a witness statement should sound like a competent human who actually lived the facts.

War Story #3: The Mystery Privilege Log. A party withheld dozens of items with vague descriptions like “email re: strategy.”
That’s the legal equivalent of labeling every box in your garage “stuff.” The other side challenged the withholdings, motion practice followed,
and the arbitrator required improved descriptions and sampling. Lesson: privilege is respected in arbitration, but the claim has to be intelligible.
If you can’t explain why something is privileged without revealing the privileged part, you’re probably not trying hard enough.

War Story #4: The Missing Witness. A party submitted a detailed witness statement, then tried to avoid producing the witness for
cross-examination due to “scheduling difficulties” (also known as “please don’t ask questions”). The tribunal gave the opposing side the choice:
either the witness appears, or the statement’s weight will be reduced. The witness appeared. Lesson: if you want the tribunal to rely on testimony,
expect the witness to show up. Written direct does not mean witness invisibility.

War Story #5: The Exhibit-Witness Mismatch. A damages witness confidently testified that a key cost was “unavoidable.”
Unfortunately, a change order email thread (produced late) showed the cost was optionaland declineduntil someone changed their mind after a deadline.
The tribunal didn’t need to “decide” who was more believable; the documents did it. Lesson: reconcile witness narratives with the document record before
you walk into the hearing. If your story and your emails disagree, the emails are undefeated.

The consistent theme across these situations is simple: arbitration rewards disciplined proof. Focused document production + credible witness statements
= a record that persuades. Everything else is just expensive noise wearing a suit.