Our client wanted to pursue a claim for commissions against the real estate broker for whom she had previously worked. The claim concerned the development and construction of a medical office building in Florida. Her contract with the broker provided that disputes had to be resolved through arbitration. The challenge we faced is that we did not know the names of the various parties involved in the project or have access to any of the related documents. Initiating arbitration without adequate information about the project was akin to shooting in the dark.
To gain more information, we utilized a court rule and statute that allow a party to seek discovery through a court order without actually filing a lawsuit, but neither the rule nor statute made clear that these procedures were available to parties who would be pursuing arbitration. Though the purpose behind both suggested they applied to pre-arbitration situations, there was little authority for our position.
We applied to the court for an order that the broker should produce the information we sought, and the broker objected, asserting that the court rule and statute applied only to parties who could potentially initiate litigation, not parties bound by arbitration agreements. The broker argued that our client was entitled to information only through the arbitration process.
Because the trial court agreed with the broker, we took the case up on appeal. The appellate court held that our client was entitled to the information she sought, holding that “An action for discovery is an auxiliary proceeding, separate from substantive claims referable to arbitration.” Based on our work, it is now clear that the court rule and statute apply not just to pre-litigation but to pre-arbitration situations.
[White v. Equity, Inc., 178 Ohio App.3d 604, 2008-Ohio-5226]
