April 7, 2009
I write to oppose the extremely burdensome and inappropriate proposed expansion of financial documents and information that public investors would be required to produce in all Finra arbitration proceedings, if the SEC approves the proposed amendments to the Discovery Guide.
I have represented investors in securities arbitration proceedings for seventeen years.
Ten years ago, when the original Discovery Guide was approved, investors began to be required to produce a variety of financial records that have little, if any, relevance to the issue of whether an investor was defrauded or the issue of the suitability of an investment or a portfolio for the investor. What broker/dealers and their counsel have done under the original Discovery Guide is to go on a fishing expedition through investors' financial records seeking to dig up any questionable financial activity by the investor or dirt on the investor, which is wholly irrelevant to the issues in the case. Broker/dealers and their counsel have attempted to use this information to divert the inquiry from an attempt to determine the truth about whether the broker/dealer is liable to the investor for fraud or other wrongdoing, and turn the inquiry into an after-the-fact fiancial audit of the investor.
Several proposed amendments to the Discovery Guide make the burden on investors significantly and unnecessarily greater with respect to the production of financial records. The time period under the proposed amendments is expanded from three years from the first transaction at issue to five years. The documents to be produced have also been expanded to include complete copies of tax returns and loan applications. These amendments would have a chilling effect on investors' filing arbitration claims. Arbitration is lauded by some as a cheaper, less burdensome, and more expeditious forum for the resolution of disputes. The proposed amendments concerning financial discovery from investors would take the Finra arbitration process in the opposite direction.
I urge the Commission to reject the proposed amendments which seek to place additional burdens on investors regarding the production of financial documents and information. I am in agreement with the comments submitted by Scott Shewan on behalf of the Public Investors Arbitration Bar Association.
I appreciate your consideration of this comment.