April 3, 2009
Elizabeth Murphy
Secretary
Securities and Exchange Commission
100 F Street NE.
Washington, D.C. 20549-1090
RE: Amendments to Discovery Guide in FINRA Arbitrations
SR-FINRA-2008-024
Dear Ms. Murphy:
Thank you for the opportunity to comment upon the above-referenced proposal regarding changes to the Discovery Guide that applies to FINRA arbitration matters. I am a member of the bar of the Commonwealth of Massachusetts and have been since 1999. I have dedicated a substantial portion of my practice since my admission to representing investors in disputes with broker-dealers, investment advisers, and banks and have handled a number of cases before NASD and NYSE dispute resolution services before the two bodies merged into FINRA, where many of my cases proceed.
I write to voice my support for the comment letter submitted by the Public Investors Arbitration Bar Association (PIABA). I have been a member of PIABA for several years and have served on both the amicus brief committee and the SRO committee, which is responsible for reviewing FINRA rule proposals. While there are some elements of the proposed revisions to the Discovery Guide that are positive, as a whole, the revised Discovery Guide should be rejected, as it goes too far in granting greater access to customer documents for industry members without providing a reciprocal increase in access to member firms documents for the customer. As the administration of SRO arbitration already carries inherent bias, for a number of reasons, in favor of the industry members, the Discovery Guide should be viewed as one tool for equalizing the playing field for customers who are forced to arbitrate before FINRA. The proposed revisions to the Discovery Guide, however, actually make the field even more slanted in favor of FINRA member firms.
The proposed changes to the Discovery Guide can be summarized as greatly, and unfairly, expanding both the scope and nature of the documents and information that are presumptively discoverable in FINRA arbitration proceedings by the customer who have already been victimized by the member firm. As I feel the PIABA comment letter adequately addresses the specific provisions of the Discovery Guide, I will not address the individual provisions here. As a general note, the new Discovery Guide would take several unprecedented and unwarranted steps to expand discovery against the customer by: 1) requiring the customer (but not the member firm or the registered representative) to provide written authorization for the other side to obtain third party discovery without resort to the subpoena process 2) requiring the customer to affirm that his or her tax returns provided in discovery are identical to those provided to the IRS (without any similar requirement imposed on the other side) and 3) requiring customers to respond to requests for information. These additions have no foundation in law or common sense, but rather give member firms carte blanche to obtain nearly unfettered discovery of a customers financial situation, even if such information was neither available to the broker at the time he or she made a recommendation or executed a transaction. The burden on the customer in responding to these presumptively discoverable categories of documents is simply far too onerous. It is also outrageous that there are no presumptively discoverable categories concerning the brokers personal financial situation. Finally, the amount and nature of the financial information that customers are required to produce make it so that member firms and registered representatives are permitted to engage, after the fact, in an analysis of the customer's financial situation that is based not on the information the broker was required to rely upon in making a recommendation consistent with applicable standards and rules, but rather on whatever tidbits of information can be gleaned from financial documents that may have no bearing on an individual case.
While there are some positive changes in the Guide, the cumulative effect of the changes to the Discovery Guide ultimately render it wholly unreasonable and the Commission should reject the current proposed revised Guide. The playing field is already slanted against customers in FINRA arbitration and the proposed Discovery Guide only tilts it more steeply.
Thank you for your courtesy and consideration.
Yours very truly,
/s/ Angela H. Magary