How the Rules Change When Your Case Moves Out of Court
Arbitration changes the way discovery works. A case that would allow broad deposition practice in court may permit only limited discovery by deposition in arbitration, or none without the arbitrator's permission. The answer depends on the arbitration clause, the provider rules, the arbitrator’s scheduling order, and any agreement between the parties.
That difference affects more than attorney preparation. It changes how testimony is preserved, how exhibits are marked, how objections are handled, who pays for the record, and whether the transcript can be used later in the proceeding. When a deposition is allowed in arbitration, the record must be handled with care because the opportunity to repeat or correct testimony may be limited.
For a broader comparison of court cases and arbitration, see Litigation vs. Arbitration. This post focuses on one narrower issue: what changes when the parties need deposition testimony in arbitration.
Arbitration Is Not Governed by the FRCP
Federal court depositions generally follow the Federal Rules of Civil Procedure. Arbitration does not work that way. The parties may agree to use certain court-style procedures, but discovery in arbitration usually comes from the arbitration agreement, provider rules, and arbitrator orders.
That means counsel should not assume that a seven-hour deposition limit, standard federal objection practice, or ordinary subpoena procedures automatically apply. The arbitrator may set limits on the number of depositions, the length of examination, the topics, exhibits, and transcript handling.
The scheduling order becomes one of the most important documents in the case. It should state whether depositions are allowed, how many may be taken, how long they may last, how exhibits will be exchanged, and whether the transcript will be treated as part of the arbitration record.
AAA Commercial Arbitration Rules and Depositions
Under the American Arbitration Association’s (AAA) Commercial Arbitration Rules, arbitrators have broad authority over pre-hearing information exchange. Rule R-23 gives the arbitrator control over the necessary exchange and production of information among the parties.
AAA commercial cases do not mirror civil litigation discovery by default. In many cases, document exchange is the main form of pre-hearing discovery. Depositions may be allowed when the arbitrator finds they are needed for a fair and workable process.
The AAA’s large, complex commercial procedures provide more direct language for depositions. In exceptional cases, and on good cause shown, the arbitrator may order depositions to obtain testimony from a person who may have information relevant and material to the disputed issues. The arbitrator may also allocate the cost of taking that deposition.
For court reporting purposes, the key point is planning. If counsel expects deposition testimony to matter in an AAA arbitration, the request should be raised early and reflected in the scheduling order for document production. The order should also state whether the deposition will be transcribed, whether exhibits will be attached or separately indexed, and who receives the certified transcript.
JAMS Discovery Rules and Depositions
JAMS Comprehensive Arbitration Rule 17(b) gives each party one deposition of an opposing party or one individual under the control of the opposing party. The parties should try to agree on the time, place, and length of the deposition. If they do not agree, the arbitrator decides those issues as part of alternative dispute resolution (ADR). Additional depositions are not automatic. The arbitrator decides whether more depositions are needed based on the need for the information, the availability of other discovery, and the burden on the opposing party or witness.
JAMS also publishes Recommended Arbitration Discovery Protocols. Those protocols discuss limits that may be used in appropriate cases, such as a set number of discovery depositions per side, a total-hour limit, and a ban on speaking objections except to preserve privilege. For litigation teams, JAMS depositions require a different mindset than court depositions. Counsel should prepare a focused examination, agree on exhibits in advance where possible, and avoid spending limited deposition time on topics that can be handled through document exchange.
FINRA Arbitration Depositions
The Financial Industry Regulatory Authority’s (FINRA) arbitration has a much stricter view of depositions. FINRA Rule 12510 states that depositions are strongly discouraged in arbitration. A panel may allow depositions only under limited circumstances.
Those circumstances include preserving testimony from an ill or dying witness, accommodating a witness who cannot or will not travel long distances for the hearing and may not otherwise be required to attend, expediting large or complex cases, or situations where the panel finds extraordinary circumstances.
This matters in customer disputes, broker-dealer disputes, and financial services cases. A party that wants a FINRA deposition should be prepared to explain why document exchange and hearing testimony are not enough. If the panel allows the deposition, counsel should confirm the scope, length, exhibit procedure, and transcript requirements before the deposition begins.
Key Differences from Court Depositions
Arbitration depositions differ from court depositions in several practical ways.
First, the number of depositions may be limited. In court, parties often expect multiple depositions. In arbitration, a party may need arbitrator approval before taking even one deposition, depending on the provider's rules.
Second, length limits may be set by order rather than by the FRCP. The arbitrator may allow a half-day deposition, a one-day deposition, a shared time limit, or a set number of total hours per side.
Third, objection practice may be narrower. Arbitrators often want efficient examinations without speaking objections. If the parties want a specific objection protocol, they should ask the arbitrator to include it in the scheduling order.
Fourth, exhibit handling may be more controlled. Arbitrators may require pre-marked exhibits, advance exchange of exhibits, exhibit lists, or electronic exhibit bundles. This can affect how the court reporter labels and stores the record.
Fifth, transcript certification and use may depend on the arbitrator’s order. The parties should confirm whether the deposition transcript is for discovery only, impeachment, preservation testimony, or use as evidence at the hearing.
The Significance of the Arbitration Record
Arbitration awards can be difficult to challenge. Under the Federal Arbitration Act, a court may confirm an arbitration award, and vacatur is limited to the listed statutory grounds, such as corruption, evident partiality, certain misconduct, or arbitrators exceeding their powers.
That does not mean every arbitration deposition becomes hearing evidence. It does mean the record should be treated carefully from the start. If deposition testimony is later used for impeachment, motion practice, witness preparation, or hearing presentation, the transcript must be accurate, organized, and easy to cite.
An unreliable transcript can create disputes about what was said, which exhibit was being discussed, whether a question was answered, or whether an objection was preserved. In arbitration, those disputes may need to be resolved quickly by the arbitrator, often without the slower motion process available in court.
What to Confirm Before an Arbitration Deposition
Before scheduling an arbitration deposition, counsel and litigation staff should confirm the following:
Which arbitration rules apply
Whether the arbitrator has authorized the deposition
The witness, topics, date, location, and time limit
Whether the deposition will be remote, in person, or hybrid
Whether exhibits must be exchanged in advance
How exhibits will be marked and stored
Whether the transcript must be certified
Whether realtime, rough draft, or expedited delivery is needed
Whether video recording is allowed
Whether the transcript may be used at the hearing
Who will receive the transcript and exhibit files
These details should not be left for the day of the deposition. Arbitration depends heavily on agreed procedure and arbitrator control, so the record process should be set before testimony begins.
Do You Need a Court Reporter for Arbitration Depositions?
A certified court reporter may not be required in every arbitration deposition, but using one is often the safer practice when testimony may matter later. A certified transcript gives counsel a reliable page-and-line record, supports hearing preparation, and reduces disputes over what the witness said.
A court reporter can also help manage exhibit marking, remote deposition logistics, transcript formatting, rough draft delivery, realtime access, and certified final transcript delivery. In complex arbitration, those details can affect how quickly the legal team can prepare for the hearing.
Contact NAEGELI Deposition & Trial for Arbitration Deposition Support
Arbitration depositions require more planning than ordinary court depositions because the rules can change from one provider to another. AAA, JAMS, and FINRA each treat deposition discovery differently, and the arbitrator’s order may control the final procedure.
NAEGELI Deposition & Trial provides court reporting, remote deposition support, realtime transcription, legal videography, certified transcripts, exhibit management, and transcript-video synchronization for arbitration and litigation teams. When a case requires accurate testimony capture outside the courtroom, NAEGELI Deposition & Trial can support the record from scheduling through transcript delivery.
Contact an e-discovery expert to help prepare your law firm for your next bench trial, jury trial, deposition, or courtroom presentation. Call (800) 528-3335, email schedule@naegeliusa.com, click “SCHEDULE NOW,” or use the website chat to connect with a client services specialist today.
Frequently Asked Questions About Arbitration Depositions
Can you depose witnesses in arbitration?
Yes, but depositions in arbitration are not automatic. The right to take a deposition depends on the arbitration agreement, the provider rules, the arbitrator’s order, and any agreement between the parties.
JAMS generally allows one deposition of an opposing party or one person under that party’s control, while FINRA strongly discourages depositions and allows them only in limited circumstances. AAA commercial arbitration gives the arbitrator broad control over pre-hearing information exchange.
Are arbitration depositions admissible?
An arbitration deposition may be used if the arbitration rules, the arbitrator’s order, or a party's agreement allows it. The transcript may be used for impeachment, witness preparation, preservation testimony, or hearing evidence, depending on the scope set by the arbitrator.
Counsel should not assume that a deposition transcript will be admitted at the arbitration hearing. The permitted use should be clarified before the deposition is taken.
Do you need a certified court reporter for arbitration?
A certified court reporter may not be required in every arbitration, but one should be used when the testimony needs to be preserved in a reliable transcript. This is especially important when the deposition may be used for impeachment, preparation for the hearing, or presentation to the arbitrator.
A certified transcript also helps with page-and-line citations, exhibit tracking, remote testimony, video synchronization, and later review by the legal team.