April 2, 2009
I fully support the Commissions goal of reforming the discovery process of FINRA Arbitration claims. As a former stock broker and current securities lawyer who has represented both customers and firms in FINRA arbitration, in addition to serving as an arbitrator in multiple NASD arbitration hearings, I understand that the discovery process needs reform. However, I am concerned that the currently proposed rules are one-sided by only benefiting respondent firms.
The proposed rules will require more production from customers and less production from firms. This is inherently unfair. Specifically, the rules expanding the discovery of past financial documents from three years to five years prior to the first transaction is unreasonable and unnecessary. Also unreasonable and unnecessary is the inclusion of loan application documents of the customer-claimants. Finally, I also have concerns with requiring the production of audio recordings of phone conversations made by a customer, but specifically excluding audio recordings made by respondent-firms. It is irrelevant as to who made a recording when determining whether it should be produced.
I urge the Commission to take a close re-examination of these issues. I also urge the Commission to closely read and take account of letter written by Scott R. Shewan. He addresses many of the issues and problems with the FINRA discovery process and the proposed rule change in detail.
Very truly yours,
John S. Burke
Higgins Burke, P.C.