Waiving Arbitration By Pursuing Litigation

Cases concerning waiver of arbitration rights typically get into the nitty-gritty of what the parties did prior to one of them seeking to change course. The First Circuit Court of Appeal recently decided one such case, concluding that engaging in discovery for some nine months – including participation in sixteen depositions amid other discovery – constituted waiver of the right to arbitrate. Per the federal court, it was "nose-on-the-face plain" that the opposing party would be prejudiced by allowing the late-game change to arbitration. Perhaps most critically, there was no real explanation for the change of heart, e.g., a new pleading or cause of action, which probably doomed the request.