April 3, 2009
My law practice is devoted to representing investors in securities disputes, and has been since 2002. The proposed revision to the Discovery Guide is a substantial step backwards from the current discovery guide (NTM 99-90). The irony of the proposed revision to the Discovery Guide is that on one hand, FINRA touts the efficiency, fairness, and procedural advantages to private arbitration. On the other hand, however, it proposes these revisions which would essential mirror the type of discovery that would be allowed in federal or state court (absent depositions and interrogatories). Should these current revisions be adopted (which they should not) then essentially an investor plaintiff would be required to pursue their case in a court of law (discovery) with none of the procedural safeguards (arbitration). If FINRA believes that its system of dispute resolution is still superior to federal or state court, then the Discovery Guide should parallel those goals.
I join in the comments made by Scott Shewan, on behalf of PIABA. In conclusion, if the proposed Discovery Guide changes cannot be revised to level the discovery playing field, then it should be rejected.