Vo v. Technology Credit Union
Applying Ramirez’s discovery factors, the Court of Appeal held that JAMS Rule 17 gives an arbitrator authority to expand discovery — including nonparty discovery when necessary — so an employment arbitration agreement was not substantively unconscionable, and disapproved Aixtron to the extent it read that authority narrowly.
Vo v. Technology Credit Union (2025) 108 Cal.App.5th 632
Arbitration
Unconscionability
Arbitral discovery
In brief. A terminated employee resisted arbitration of his FEHA claims, arguing the agreement was substantively unconscionable because — under Aixtron, Inc. v. Veeco Instruments Inc. (2020) 52 Cal.App.5th 360 — the arbitrator lacked authority to compel prehearing third-party discovery. The trial court agreed and denied arbitration. The Sixth District reversed. Applying the five discovery factors from Ramirez v. Charter Communications, Inc. (2024) 16 Cal.5th 478, and construing an ambiguous provision to preserve validity, it held that JAMS Rule 17 (2014) gives the arbitrator authority “to make available additional nonparty discovery if necessary to allow fair arbitration of the claim,” so the agreement was not unconscionable. (Vo v. Technology Credit Union (2025) 108 Cal.App.5th 632, 647.) The court “disapprove[d] of Aixtron to the extent it interpreted the scope of an arbitrator’s authority narrowly.” (Ibid.)
By Jonathan J. Delshad
Founder & Editor-in-Chief
Facts
Before beginning work at Technology Credit Union (TCU) in 2020, Thomas Vo signed an employment arbitration agreement committing “‘any dispute, claim or controversy arising out of or relating to [his] employment’” to “mandatory binding arbitration.” (Vo v. Technology Credit Union (2025) 108 Cal.App.5th 632, 637.) The agreement listed arbitrable claims (discrimination, harassment, unpaid wages, wrongful termination, and breach of contract, among others), excluded claims not subject to mandatory arbitration by law (workers’ compensation and unemployment), and provided that “a neutral arbitrator from JAMS would administer any arbitrations pursuant to its employment arbitration rules,” which were incorporated by reference but not attached. (Ibid.)
While employed, Vo “contracted COVID-19 and developed long-term health issues.” (Vo, supra, 108 Cal.App.5th at p. 637.) After his termination, he sued TCU under FEHA for harassment, discrimination, failure to accommodate, failure to engage in the interactive process, retaliation, and failure to prevent discrimination and retaliation, and for wrongful termination in violation of public policy. (Ibid.)
Procedural history
TCU moved to compel arbitration under Code of Civil Procedure section 1281.2 and to stay the action. Vo opposed on unconscionability, arguing the agreement was procedurally unconscionable as a contract of adhesion and substantively unconscionable because it “failed to expressly incorporate” the California Arbitration Act provision permitting arbitrators to allow third-party discovery (Code Civ. Proc., § 1283.05) and therefore, under Aixtron, denied him authority to obtain the nonparty discovery his witness-intensive FEHA case required. (Vo v. Technology Credit Union (2025) 108 Cal.App.5th 632, 637–638.)
The trial court, in what it called “‘a close factual and legal call,’” agreed. Relying on Aixtron, it found the agreement adhesive and substantively unconscionable because it “did not give an arbitrator the authority to compel third party discovery,” and it declined TCU’s belated request to judicially notice the 2021 JAMS rules. (Vo, supra, 108 Cal.App.5th at p. 638.) TCU appealed. Review is de novo where, as here, the ruling turns on interpretation of law. (Id. at p. 638, citing Ramirez v. Charter Communications, Inc. (2024) 16 Cal.5th 478, 493.)
Issue
Whether an employment arbitration agreement that incorporates the JAMS rules but does not expressly incorporate the CAA’s third-party-discovery provision is substantively unconscionable — under the discovery framework of Ramirez — because the arbitrator purportedly lacks authority to order the nonparty discovery an employee needs to arbitrate FEHA claims. (Vo v. Technology Credit Union (2025) 108 Cal.App.5th 632, 638, 643–647.)
Holding
The agreement is not unconscionable, and the order denying arbitration is reversed. There was only “a minimal degree of procedural unconscionability” (adhesion; the JAMS rules incorporated by reference). (Vo v. Technology Credit Union (2025) 108 Cal.App.5th 632, 643.) On substantive unconscionability, applying the five Ramirez discovery factors, the court held the agreement mutual and — critically — held that JAMS Rule 17 (July 1, 2014 version, in effect when Vo signed) gives the arbitrator authority to expand discovery, so that Vo could obtain “the third party discovery required to adequately arbitrate his claims.” (Id. at pp. 644–647.) “We thus disapprove of Aixtron to the extent it interpreted the scope of an arbitrator’s authority narrowly,” and “construe the rule to provide the arbitrator the authority to make available additional nonparty discovery if necessary to allow fair arbitration of the claim.” (Id. at p. 647.) Because the agreement was not unconscionable, the court did not reach severability, and it directed the trial court to grant the motion and stay the litigation under section 1281.4. (Id. at pp. 648–649.)
Reasoning
The Ramirez discovery factors. The court framed the analysis around the five factors Ramirez established for evaluating a discovery provision: “(1) the types of claims covered by the agreement, (2) the amount of discovery allowed, (3) the degree to which that amount may differ from the amount available in conventional litigation, (4) any asymmetries between the parties with regard to discovery, and (5) the arbitrator’s authority to order additional discovery.” (Vo v. Technology Credit Union (2025) 108 Cal.App.5th 632, 643, citing Ramirez, supra, 16 Cal.5th at p. 506.) Under Ramirez, “‘[t]he scope of what discovery is sufficient is determined by the arbitrator,’” and sufficiency “can be established by giving the arbitrator the authority to expand discovery.” (Ibid.)
Mutuality. The agreement bound both sides to arbitrate “‘any and all disputes and claims arising out of Vo’s employment,’” with an illustrative, non-exhaustive list and only the law-mandated carve-outs for workers’ compensation and unemployment. It therefore carried the required “‘modicum of bilaterality’” and raised no mutuality concern. (Vo, supra, 108 Cal.App.5th at pp. 644–645, citing Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 117, 120 and Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1249.)
The pivotal factor: the arbitrator’s authority under JAMS Rule 17. The agreement incorporated the JAMS rules effective July 1, 2014 — the version in force when Vo signed. (Vo, supra, 108 Cal.App.5th at pp. 643–644.) The court rejected TCU’s reliance on the 2021 rules, which expressly authorize third-party discovery with the arbitrator’s approval under Rule 17(e): “[s]ince this version of the JAMS Rules was not effective at the time the arbitration agreement was effectuated in 2020, TCU’s reliance on JAMS Rule 17(e) fails.” (Id. at p. 644.) Instead, the court grounded its holding in the 2014 rules. Rule 17(b) permits each party one deposition and provides that “‘[t]he necessity of additional depositions shall be determined by the [a]rbitrator based upon the reasonable need for the requested information, the availability of other discovery options and the burdensomeness of the request,’” and Rule 17(d) gives the arbitrator authority to decide “‘all disputes … regarding discovery issues.’” (Id. at pp. 644, 647 & fn. 9.) Though “this language could have been more precise,” it “does not limit expanded discovery to parties … and does not preclude an arbitrator from making nonparty discovery available.” (Id. at p. 647.)
Why Aixtron does not control — and is disapproved in part. The court squarely engaged Aixtron, a decision from a different panel of the same district holding that under the identical 2014 JAMS rules an arbitrator could not compel a nonparty’s prehearing discovery. (Vo, supra, 108 Cal.App.5th at pp. 645–647.) Two points distinguished and limited it. First, posture: Aixtron arose when a third party appealed enforcement of an arbitrator’s subpoena and “did not consider the issue of whether the arbitration agreement was unconscionable.” (Id. at pp. 646, 648.) Second, and more fundamentally, Ramirez — decided after Aixtron and neither discussing nor disapproving it — teaches that unconscionability “turns on whether a party has access to adequate discovery to vindicate its claims,” that “‘giving the arbitrator authority to expand discovery’ is one way to ensure” it, and that an ambiguous clause “susceptible to an interpretation that either renders it valid or void” must be read to make the contract valid. (Id. at pp. 646–647, quoting Ramirez, supra, 16 Cal.5th at pp. 504–507.) On that instruction, the court “disapprove[d] of Aixtron to the extent it interpreted the scope of an arbitrator’s authority narrowly.” (Id. at p. 647.)
The recalcitrant-nonparty gap, and formation-time review. The court acknowledged the practical limit that troubled Aixtron: under the 2014 rules, if a nonparty refused to comply, the arbitrator “would not have the authority to enforce compliance with its discovery order.” (Vo, supra, 108 Cal.App.5th at p. 648.) But because unconscionability is assessed “at the time of formation,” the court declined “to determine that the agreement is unenforceable by presuming that a third party would refuse to respond,” and it invoked Ramirez’s instruction to assume the arbitrator “‘will act “reasonably and in conformity with the law.”’” (Id. at pp. 647–648.) “The possibility of a recalcitrant third party witness does not preclude a holding that the discovery available under the provision is adequate.” (Id. at p. 648.)
A note on the statutory backdrop. The court observed that after Aixtron, the Legislature repealed former Code of Civil Procedure section 1283.1 (Sen. Bill No. 940 (2023–2024 Reg. Sess.)), so that “[e]ffective January 1, 2025, parties can now obtain third party discovery under the CAA without explicitly incorporating section 1283.05 into their arbitration agreement.” (Vo, supra, 108 Cal.App.5th at p. 646, fn. 6.) That change did not affect Vo’s 2020 agreement — reviewed as of formation — but it substantially narrows the problem going forward.
Significance
Vo is a consequential intermediate-appellate decision on a recurring fight in California arbitration practice: whether an employment agreement that funnels a witness-intensive FEHA case into arbitration deprives the employee of adequate third-party discovery. It reads the Supreme Court’s 2024 Ramirez decision as decisive on two fronts — that the touchstone is access to adequate discovery, measured at formation, and that a discovery clause ambiguous about the arbitrator’s power should be construed to preserve validity — and it applies that reading to hold that even the 2014 JAMS rules empower an arbitrator to expand nonparty discovery when necessary. In doing so it creates an open split within the Sixth District itself, disapproving the earlier Aixtron panel’s narrower view of arbitral authority. For litigants, the practical upshot is that the once-potent “no third-party discovery” attack on JAMS-based agreements is substantially weaker after Vo, at least where the agreement leaves the arbitrator discretion to expand discovery.
Two boundaries keep the decision in perspective, and both matter to employees. First, Vo did not hold that arbitrators can enforce discovery against an unwilling nonparty under the 2014 rules — it conceded they cannot — and rested instead on the formation-time presumption that a nonparty will comply and the arbitrator will act lawfully. That leaves room, in a concrete case, to show that a specific agreement in fact denies adequate discovery, particularly if the clause affirmatively limits the arbitrator’s power (as in Mills v. Facility Solutions Group, Inc. (2022) 84 Cal.App.5th 1035, where a “substantial need” prerequisite was held unconscionable). Second, the decision’s reach is time-bounded by statute: because Senate Bill No. 940 now permits CAA third-party discovery without express incorporation for agreements governed by the current law, the Aixtron/Vo dispute chiefly concerns older agreements. Vo narrows a plaintiff-side argument, but it does not eliminate the discovery inquiry that Ramirez requires.
Key quotes
“We thus disapprove of Aixtron to the extent it interpreted the scope of an arbitrator’s authority narrowly. In accordance with Ramirez, we construe the rule to provide the arbitrator the authority to make available additional nonparty discovery if necessary to allow fair arbitration of the claim.” (Vo v. Technology Credit Union (2025) 108 Cal.App.5th 632, 647.)
“Since this version of the JAMS Rules was not effective at the time the arbitration agreement was effectuated in 2020, TCU’s reliance on JAMS Rule 17(e) fails.” (Vo, supra, 108 Cal.App.5th at p. 644.)
“The possibility of a recalcitrant third party witness does not preclude a holding that the discovery available under the provision is adequate and the agreement valid.” (Vo, supra, 108 Cal.App.5th at p. 648.)
Practice pointer
For plaintiff-side counsel, Vo signals that the categorical “JAMS gives no third-party discovery, so it’s unconscionable” argument no longer wins on its own — a court will read Rule 17 (and Ramirez) to give the arbitrator power to expand discovery and will assume the arbitrator acts lawfully. To keep the discovery-adequacy attack alive, do not argue in the abstract; work the Ramirez factors against the specific clause. Look for language that affirmatively limits the arbitrator’s authority — a “substantial need” or heightened-showing prerequisite (as in Mills), a numerical cap decoupled from the arbitrator’s discretion to expand, or asymmetric discovery rights — because those, unlike mere silence, remain vulnerable. Mind the timeline: Vo turns on the rules in effect at signing, so identify which JAMS rule set the agreement incorporated and when it was signed; and remember that for agreements governed by current law, Senate Bill No. 940 (eff. Jan. 1, 2025) now supplies CAA third-party discovery by default, which cuts against the older adequacy argument. Finally, preserve the enforcement point: Vo concedes that under the 2014 rules an arbitrator cannot compel a resisting nonparty, so where the case genuinely depends on nonparty testimony, build a concrete record of that need — while recognizing the court reviews adequacy at formation, not by hindsight. For defense counsel, Vo is a template: lean on Ramirez’s validity-preserving construction, the arbitrator’s Rule 17 authority, and formation-time review.
Open questions
Because it found the agreement not unconscionable, the court “d[id] not reach the issue of severability.” (Vo v. Technology Credit Union (2025) 108 Cal.App.5th 632, 648.) More significantly, Vo openly disapproves a prior decision of its own district, Aixtron, on the scope of an arbitrator’s authority to reach nonparty discovery under the 2014 JAMS rules — a split among Court of Appeal panels that only the Supreme Court can finally settle (and review was denied here). The opinion also leaves unresolved how its formation-time presumption interacts with a case that actually founders on a recalcitrant nonparty: the court holds that the mere possibility of noncompliance does not make an agreement unconscionable, but it does not decide what remedy, if any, an employee has when the arbitrator in fact cannot secure essential third-party evidence. Finally, the decision’s practical footprint will shrink over time, since Senate Bill No. 940’s repeal of former section 1283.1 supplies CAA third-party discovery for agreements governed by current law — leaving Vo’s holding to govern chiefly the population of older, pre-2025 agreements.