July 21, 2006
I am an attorney in Cleveland, Ohio and focus my practice almost exclusively in the area of disputes between investors and investment professionals. I write to comment on the proposed amendments to NASD Rule 10322, and particularly proposed subsection (e) of that rule.
Discovery in arbitrations has always been conducted on the basis that documents are produced by each side at no expense to the other. This has certainly been true of production required under NTM 99-90. I see no valid reason to carve out an exception for subpoenaed documents and I strongly believe that the creation of such an exception can only lead to problems.
There will be disagreements as what types of expenses would constitute "reasonable costs associated with production," whether the reimbursement demanded is truly reasonable, and whether the documents can be withheld pending payment. Eventually, all of these issues will wind up before the arbitrators.
Moreover, requiring reimbursement for the production of subpoenaed documents will disproportionately disadvantage the investor. It is obvious that brokerage firms generally have vastly superior financial resources and will always be capable of paying for copies, whereas the investor may well suffer financial hardship if his or her expenses are increased.
I strongly recommend that the rule be changed to require any party obtaining subpoenaed documents to AUTOMATICALLY provide copies to the opposing party free of charge, regardless of whether copies have been formally requested. That would comport with the customary practice prevalent in my city and would be the fairest and most effective means of ensuring that the parties have equal access to the facts.
Very Truly Yours,