D. Discovery During Arbitration
1. Discovery Between the Parties
As alluded to above, discovery is often limited during arbitration.45 The Arbitration Act does not provide a party with the right to complete discovery that would be available in litigation. The restraint placed on discovery is one of key features that reduce the cost of arbitration when compared to traditional litigation.46 Such cost savings may not be realized in every arbitration. The Arbitration Act allows the arbitrator to issue subpoenas to secure a witnesses' testimony at the hearing, as well as for the production of books, records, documents, or other evidence.47 Moreover, arbitrators may permit depositions.48 Recalling the court's reasoning for finding prejudice in Accent Manufactured, the "tools unavailable in arbitration"49 appear to be extensive interrogatories, and by connection, extensive requests for admissions.50 But like most other aspects, the parties' agreement may define the discovery available in the arbitration proceedings.51
2. Third-Party Discovery
One certain limitation facing parties in arbitration involves their ability to have third parties subpoenaed to either testify or produce documents. The Arbitration Act empowers arbitrators to issue subpoenas for the attendance of witnesses and for the production of documents.52 A plain reading of the statute suggests that an arbitrator has no power under the Arbitration Act to subpoena a non-party and force them to submit to a deposition or produce documents during prehearing discovery.
The arbitrator, furthermore, cannot compel a non-party that is out of state to appear or produce documents through a subpoena. That Arbitration Act provides that subpoenas are served and enforced "in the manner provided by law for the service and enforcement of subpoenas in a civil action."53 Subpoenas are governed by Rule 45 of the South Carolina Rules of Civil Procedure, which limits service of subpoenas to being perfected within the State.54 Generally, then, to discover materials in the possession of a non-party outside South Carolina or take a non-party's deposition, the party will be required to follow the non-party's state's rules regarding depositions or production in out-of-state actions.55 A party seeking to discover documents or take a deposition of a non-party that is out of state will generally need to seek assistance from a court, but this is dependent on the non-party's state's rules and procedures.56
3. Arbitration Award
The arbitration award must be in writing and signed by the arbitrators joining the award. The award should be made within the time designated by the agreement, and a party may seek the court's assistance if the arbitrators fail to meet this deadline.57 Once an award has been made, it may be modified by application of a party or an order by the court.58 A court will only modify the award if (1) there was a miscalculation of figures or a person or property is mislabeled; (2) the arbitrators made an award on a matter not submitted for arbitration; or (3) the award's form is imperfect.59 When the award is in its final form, a party may apply to the court to confirm the award,60 and once confirmed, a judgment is entered that reflects the award.61
4. Vacating an Arbitration Award
As the South Carolina Supreme Court has opined in Gissel v. Hart62 and the United States Supreme Court has opined in United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc.,63 it is rare that a court is willing to overturn an arbitration panel's award.64 Otherwise, arbitration would simply become a prelude to litigation and would leave arbitration unable to fulfill its purpose. See generally, Creed v. Trident Technical College.65 The Arbitration Act specifically defines the limited circumstances when an arbitrator's award may be overturned including (1) the award was procured by corruption or fraud; (2) evidence of arbitrator bias; (3) the arbitrators exceeded their power; (4) the arbitrators conducted the hearing in a way that substantially prejudiced the rights of a party; or (5) there was no arbitration agreement.66
An arbitration award will not be overturned even if there is evidence the arbitrator interpreted the contract in a clearly erroneous manner.67 There are some instances, however, where courts have vacated an arbitrator's award. The court in Pittman Mortgage Co., Inc. v. Edwards68 held that an arbitration panel exceeded its authority by awarding the defendant the value of her shareholder's equity. The court noted that "[a]rbitrators exceed their powers only if the issue resolved by them is not within the scope of the agreement to arbitrate."69 The panel made the award even though the pleadings and relief sought did not request her shareholder's equity.70 Thus, the panel went outside the arbitration agreement, which necessitated the award's reversal.71
In Lybrand v. Merrill, Lynch, Pierce,...
