April 3, 2009
The original Discovery Guide was approved by the SEC on September 2, 1999. The first year of full use was 2000. As the table below demonstrates the adoption of the Discovery Guide was the beginning of a steady decline in the success of Claimants in FINRA arbitration. Conversely, the Securities enjoyed much greater success after the implementation of the Discovery Guide.
I have experience representing both Respondents and Claimants in securities arbitration proceedings. It is my opinion that the Discovery Guide's focus on information regarding the investor is unfair and prejudices the proceeding. Much of the information investors are required to produce has nothing to do with the issues in the particular arbitration proceeding.
Prior to the implementation of the Discovery Guide investors had at least a reasonable chance at recovery. That certainly is not the case currently. The new proposal requiring even more information from the investor will very likely cause the securities firms to enjoy even greater success against investors in arbitration.
The Discovery Guide should be scrapped altogether and the arbitrators should determine what information is relevant to each proceeding on a case by case basis. This may cause investors to get back to the 60% chance of success, rather than the current 40%. Of course this result would not be beneficial to the securities firms.
Arbitration Win Rates for Investors (These include even the most modest of awards, that are often not actual wins).
1997 58% 2003 49%
1998 60% 2004 47%
1999 61% 2005 43%
2000 53% 2006 42%
2001 54% 2007 37%
2002 53% 2008 42%