The standard for waiver of a contractual arbitration right can be demanding, especially if the record does not contain all referenced material:

“Mary’s response to appellants’ amended motion to compel arbitration stated that appellants served responses to discovery in December 2016 and sent discovery requests of their own in February 2017. Appellants contend that the discovery they propounded was minimal, consisting of nine interrogatories, nine requests for admission, and one request for production. As no party attached any of the requests or responses to their filings in connection with the motions to compel arbitration, we cannot weigh any of the discovery-related factors in favor of or against waiver. Mary has not shown that the discovery in question was extensive, related to the merits of her claims, or would be unavailable in arbitration.”

Haddington Fund v. Kidwell, No. 05-19-01202 (Jan. 11, 2022) (mem. op.) (citations omitted).

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