Subject: File No. SR-NASD-2005-079
From: John Miller

July 21, 2006

I am writing to object to subsection e of the proposed rule, which requires the non-subpoenaing party to pay costs to obtain copies of subpoenaed documents. As an attorney representing investors, I can assure you this cost-shifting section will result in a tremendous expense increase and enormous burden for investor claimants in arbitration.

You must keep in mind that the subpoena rule change is a result of the brokerage firms' persistent abuse of the subpoena process--in arbitration, the firms routinely subpoena every financial firm and every product with which a claimant has ever had contact, often resulting in thousands of subpoenaed pages of mutual fund statements, account statements, trade confirmations, prospectuses, and so on. Traditionally, the firms have been required to provide a copy of these documents to claimants at the firms' expense. If claimants now are required to pay for copies of these documents, at the photocopying charges assessed by the large law firms representing brokers, the costs to claimants routinely will be in the hundreds, and often thousands, of dollars. If claimants do not pay for and obtain copies of the subpoenaed documents, the brokerage firms will be free to surprise claimants and other witnesses with these documents on cross-examination at hearing, as the arbitration code does not require pre-hearing disclosure of documents used for cross.

In sum, if subsection e is approved, a rule change purportedly enacted to benefit claimant investors will result in a substantially increased burden for them. Please revise subsection e to provide that the subpoenaing party must provide copies of subpoenaed documents to all other parties at the subpoenaing party's expense. Thank you for your consideration.