Party discovery in arbitration is quite limited, particularly in comparison to the scope of discovery permitted by the Federal Rules of Civil Procedure. However, to what extent can an arbitrator order a third party – who, it should be noted, never agreed to arbitrate — to appear and testify at an arbitration or to produce documents or other tangible items for use as evidence at an arbitration?
Section 7 of the Federal Arbitration Act provides: “The arbitrators…may summon in writing any person to attend before them…as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case…Said summons…shall be served in the same manner as subpoenas to appear and testify before the court; if any person or persons so summoned to testify shall refuse or neglect to obey said summons, upon petition the United States district court for the district in which such arbitrators…are sitting may compel the attendance of such person or persons before said arbitrator or arbitrators, or punish said person or persons for contempt in the same manner provided by law for securing the attendance of witnesses or their punishment for neglect or refusal to attend in the courts of the United States.”
The explicit language of the Federal Arbitration Act appears to authorize arbitrators to issue subpoenas for documents and other tangible items only when the witness in possession of such material testifies before the arbitrators. Citing this language, some circuits have held that arbitrators do not have the authority to issue subpoenas to non-parties for prehearing discovery. See e.g., Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210 (2d Cir. 2008); Hay Group, Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404 (3d Cir. 2004). Other circuits have held the opposite: that arbitrators do have the authority to issue subpoenas for prehearing discovery. See e.g., In re Security Life Insurance Co. of America, 228 F.3d 865 (8th Cir. 2000). The First Circuit has not ruled on the issue.
In recognition of the uncertainty caused by the unresolved Circuit split, a party seeking the issuance of a subpoena duces tecum might offer to arrange a witness’s appearance by video- or teleconference at a preliminary arbitration hearing specially convened for that purpose. Given the need for the issuance of a subpoena in the first place, however, it is safe to assume that the target of the subpoena is at least somewhat uncooperative, and may not willingly appear – virtually or in person. In such circumstances, Section 7 of the Federal Arbitration Act permits parties to seek judicial intervention to enforce subpoenas issued by arbitrators.
Depending on how critical third party discovery is to your case, the unsettled landscape of non-party discovery in arbitration might have a significant impact on whether to agree to arbitration as a method of dispute resolution. If arbitration has already been agreed upon and third party discovery is needed, the party seeking the discovery is advised to attempt to secure the non-party’s cooperation before resorting to an arbitrator’s subpoena.