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?
It is not uncommon for litigants in proceedings pending outside of Massachusetts to need documents or testimony from witnesses who reside in Massachusetts. Even when the witness is willing to provide the requested information voluntarily, it is wise to serve a subpoena to minimize the delay if the witness changes his mind and decides not to cooperate. Indeed, even a "friendly" subpoena carries the threat of contempt sanctions for noncompliance and therefore serves as a powerful deterrent if the witness gets cold feet. A subpoena also has the advantage of preventing the witness from appearing predisposed to provide evidence favorable to the requesting party as may be the case if the evidence is voluntarily provided.