New E-Discovery Guidelines from the AAA Aim to Keep Construction Arbitrations Efficient
Construction arbitration was designed to be faster and more cost-effective than traditional construction litigation. Discovery, especially e-discovery, was never a guaranteed right—unless the parties agreed to it contractually. But over time, the lines have blurred. Litigators have brought courtroom discovery habits into arbitration, and sprawling document demands are more common than any owner, contractor, or design professional would probably ever want them to be.
In response, the American Arbitration Association (AAA), together with the National Construction Dispute Resolution Committee (NCDRC), released new E-Discovery Considerations for Construction Arbitrations in April 2025. These non-binding best practices aim to restore arbitration’s efficiency by focusing on relevance, cooperation, and cost control. The guidelines can be reviewed here.
Proportionality Isn’t New—But It’s Central
Both the AAA guidance and the Federal Rules of Civil Procedure (FRCP) emphasize proportionality in discovery. But there’s a difference in how it’s applied. In construction arbitration, proportionality isn’t meant to be just a factor to consider—it’s the cornerstone. The AAA encourages arbitrators to limit discovery to what’s essential for resolving the dispute. That includes tailoring requests based on:
The nature and size of the project;
The amount in controversy; and
The complexity of the claims.
The takeaway? The parties should resist the instinct to mimic federal discovery requests for every single arbitration and instead focus on what’s truly needed to resolve the dispute. That isn’t to say federal-style discovery is never appropriate… it just won’t be appropriate for every case.
Early Cooperation Matters More in Arbitration
Much like in litigation, the AAA guidance emphasizes early and meaningful cooperation among the parties. In arbitration, the consequences of delay or disagreement are magnified. Because arbitrators typically resolve discovery disputes quickly—and without multiple rounds of briefing—it’s in everyone’s best interests to:
Agree on custodians, search terms, and date ranges;
Specify production formats early; and
Agree on metadata and privilege logs—or the lack thereof.
Early cooperation isn’t just courteous, it’s strategic.
Cost-Shifting Is a Powerful Check on Overreach
Perhaps the most significant divergence from federal practice is the guideline’s encouragement of using cost-shifting for burdensome discovery. While federal courts may shift discovery costs in rare cases (and usually by motion), AAA arbitrators are now encouraged to consider cost-shifting proactively. If a party requests burdensome or voluminous electronic discovery, the arbitrator may require that party to bear all or part of the associated costs, which may include vendor fees and attorney review time. This creates a natural disincentive against overbroad discovery and aligns incentives with arbitration’s efficiency goals.
Discovery is not a Given
One of the most important reminders in the AAA’s guidance is that parties are not entitled to discovery in arbitration. If the arbitration clause doesn’t provide for it, discovery, including e-discovery, only happens if the arbitrator permits it. Even when it is allowed, the guidance favors limited, focused discovery over expansive fishing expeditions. This stands in sharp contrast to litigation, where discovery is an assumed phase of the case.
* * *
It’s still early too tell if the AAA’s new e-discovery guidance will serve as a reset button. The new guidance pushes back against the over-use of e-discovery, but it will be up to individual arbitrators to reign parties in.
