What is the impact of a pre-hearing discovery clause in a medical malpractice proceeding?

We conclude that the clause barring pre-hearing discovery of any kind is substantively unconscionable in the context of this particular case. The clause wholly precludes pre-hearing discovery of any kind under any circumstances whatsoever. Although plaintiffs are entitled to their client files, the prohibition of discovery denies them access to other essential documents and witnesses. Defendants, who are likely to be in possession of the bulk of such documents and records, are significantly less affected by this prohibition than plaintiffs. The arbitration provision thus is unconscionable because it severely curtails plaintiffs' ability to pursue their professional negligence claims against defendants without appreciably restricting defendants' ability to defend against those claims. (See Ontiveros v. DHL Express (USA), Inc. (2008) 164 Cal.App.4th 494, 512-513.) We find it telling that at least some discovery was permitted in all of the cases cited by the parties. (Cf. Armendariz, supra, 24 Cal.4th at p.106 [concluding that in the context of vindicating a statutory right, "some discovery is necessary" and a party asserting such a right is "at least entitled to discovery sufficient to adequately arbitrate [the] claim, including access to essential documents and witnesses, as determined by the arbitrator. . . ."].)

Page 11