Since April of this year, for Auto filings, evidence attached to support the Recovering Party’s feature damages and the Responding Party’s damages dispute, if applicable, became viewable to all parties involved in the arbitration filing. Given the fact that evidence sharing remains relatively new, we are sharing the following information to assist you as you hear cases.
Rule 2-1 addresses the Recovering Party’s responsibilities regarding evidence sharing for Auto filings. The Reference Guide to Arbitration Forums, Inc.'s Agreement and Rules (page 37) clarifies Rule 2-1 and how the arbitrator should handle improperly attached evidence: “When the Recovering Party does not properly attach evidence to the Feature Damages workflow step to support its damages and this is raised by the Responding Party in the damage dispute section, the evidence will not be considered by the arbitrator and the damages will not be awarded. An exception is where the Responding Party is able to dispute specific damages if the documentation was previously shared.”
The last sentence above is especially important, because there are instances in which the damages documentation was shared prior to the arbitration, but it was not attached to the Feature Damages workflow step, and these must be handled appropriately. Responding Parties should not dispute damages in these instances as a form of technicality because the evidence was previously shared; however, if this is raised/disputed in the response, the arbitrator must not award damages.
Rule 2-5 addresses the Responding Party’s requirements regarding evidence sharing for Auto filings. The Reference Guide to Arbitration Forums, Inc.'s Agreement and Rules (page 45) clarifies this rule as follows: “For Auto filings, evidence attached to support the damage dispute will be viewable to the Recovering Party and other Responding Parties. Evidence not properly attached will not be considered by the arbitrator.”
If the Responding Party has argued that the Recovering Party did not properly attach its evidence and the evidence is present, you should reach out to AF’s arbitrator support. AF will advise if the evidence was properly attached when the filing was submitted or if it was added by the Recovering Party during a damage dispute revisit. While this type of amendment is generally not permitted, because it prejudices the Responding Party’s right to dispute the damages, an exception is made when the Recovering Party properly attached its evidence to support the Features Damages sought and later added new evidence during their revisit to refute the Responding Party’s specific damage dispute.
The viewable evidence application is in its early stages, and AF appreciates our members’ ongoing efforts to adapt to this new functionality.