This webinar discussed the authority of arbitrators to issue subpoenas for third-party witnesses and documents. The law is unsettled, as arbitrators have limited authority borrowed from the federal court in their district, but no contempt power. While the FAA allows arbitrators to subpoena witnesses to appear, the authority to subpoena pre-hearing document production from non-parties is unclear. The webinar provided practice tips for advocates and arbitrators, such as proving special need, suggesting creative solutions like moving hearings, and encouraging party agreement.

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ARBITRATOR SUBPOENAS:
Are They Worth The Paper They Are Printed On?
Webinar
December 3, 2015
EDUCATION SERVICES

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Disclaimer
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Arbitration Association, Inc. assumes no responsibility for the content
and materials presented by speakers during the webcast.

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Speaker(s)
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William Andrews
Andrews Myers
Houston, TX
Donald W. Gregory
Kegler Brown Hill + Ritter
Columbus, OH

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Goals
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To learn whether Arbitrator
subpoenas to third-party
witnesses are effective
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And how third parties can be
encouraged to participate in
arbitration proceedings

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Look at the AAA Rules.
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If in doubt…

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What Do AAA
Rules Say?
Rule 34 Evidence: (d) An arbitrator or other person
authorized by law to subpoena witness or documents
may do so …
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What does
Federal Arbitration Act
(“FAA”) provide?
Section 7: Arbitrators may summon person or his
records “as evidence in the case.”
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What is the authority
of an arbitrator really?
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What is the authority
of an arbitrator really?
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Borrowed from Federal
Court in District where
panel sits
No contempt power
for Panel

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So what is the
authority of
the court?
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Fed. R. Civ. P.
45 Subpoena
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Issued from court where
action is pending

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Only good within 100
miles of where person
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resides
is
employed
regularly
transacts
business

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Law is Unsettled despite FAA
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Territorial Restrictions
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 Within district in which court is located
 Within 100 miles of the noticed deposition
 Within state (if permitted by state law)
 Good cause (when permitted by federal statute)

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So is pre-hearing
third-party discovery
(by subpoena)
permitted or not?
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Schools of Thought
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Only at
the hearing
At pre-hearing
or in discovery
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Arbitrator power to subpoena document
production limited by FAA Section 7 language
to situations where non-party called to appear
in presence of arbitrator
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Hay Group, Inc. v. E.B.S. Acquisition
Corp., 360 F.3d 404, (3d Cir. 2004)

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What creative
solutions are
available?
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If Mohammed will not go to the mountain, the
mountain must come to Mohammed.

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What creative solutions
are available?
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“Pre-merits” hearing at location of witness
Bifurcate hearing and move hearing
where non-party witness resides

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Schools of Thought
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Only at
the hearing
At pre-hearing
or in discovery
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Implicit in an arbitration panel’s power to
subpoena documents for hearing is the power to
order production for review prior to hearing
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In re Security Life Insurance Co.,
228 F.3d 865, 870-71 (8th Cir. 2000)

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FAA permits pre-hearing document discovery
from non-parties only if there is a special need
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COMSAT Corp. v. Nat’l. Sci. Found.,
190 F.3d 269, 275 (4th Cir. 1999)

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Practice Tips
for Advocates
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Know the law in your
federal district1
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Be prepared to prove
a “special need”2
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Suggest creative
solutions to the panel3
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Seek agreement of
opposing counsel to the
third-party approach
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Practice Tips
for Arbitrators
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Ask parties to brief the
law in your state and/or
federal circuit
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Encourage agreement
of counsel for parties2
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Move “hearing” to where
non-party witness or
documents reside
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Consider sending only
one arbitrator to that
venue to minimize costs
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