August 19, 2010
I have been practicing securties arbitrations before FINRA/NASD for 2 decades and note that as discovery becomes more regimented, it benefits the industry and not the victims of securities fraud. FINRA should not be imposing its institutional bias regarding what is appropriately discoverable on the "unbiased" arbitrators selected by or forced upon the parties, any more than it should "mis"-train the arbitrators on the law of damages, or any other substantive matter of law.
As such, I fully adopt and endorse the comments of Professor Seth E. Lipner and Hon. Leonard Steiner and I submit that the discovery guide should be scrapped altogether.
The discovery guide serves little purpose other than to provide ammunition for the industry to conduct its after-the-fact suitability analysis i.e., a "financial colonoscopy" years after the unsuitable, misrepresented and/or unauthorized transactions occurred. Moreover, if there are any documents that Respondents cannot get from the Claimants, the industry freely abuses the subpoena process to further invade a Claimant's privacy, all with the blessing of FINRA-trained arbitrators.
Securities practitioners know full well the documents necessary to prove up their claims. We do not need FINRA to dictate what it deems to be relevant (and then oftentimes admissible) in any Claimant's case or Respondent's defense.