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.
4. Education Services |
Goals
4
1
To learn whether Arbitrator
subpoenas to third-party
witnesses are effective
2
And how third parties can be
encouraged to participate in
arbitration proceedings
6. Education Services |
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 …
6
7. Education Services |
What does
Federal Arbitration Act
(“FAA”) provide?
Section 7: Arbitrators may summon person or his
records “as evidence in the case.”
7
10. Education Services |
What is the authority
of an arbitrator really?
10
Borrowed from Federal
Court in District where
panel sits
No contempt power
for Panel
15. Education Services |
Territorial Restrictions
15
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)
16. Education Services |
So is pre-hearing
third-party discovery
(by subpoena)
permitted or not?
16
19. Education Services |
Arbitrator power to subpoena document
production limited by FAA Section 7 language
to situations where non-party called to appear
in presence of arbitrator
19
Hay Group, Inc. v. E.B.S. Acquisition
Corp., 360 F.3d 404, (3d Cir. 2004)
21. Education Services | 21
If Mohammed will not go to the mountain, the
mountain must come to Mohammed.
22. Education Services |
What creative solutions
are available?
22
“Pre-merits” hearing at location of witness
Bifurcate hearing and move hearing
where non-party witness resides
25. Education Services |
Implicit in an arbitration panel’s power to
subpoena documents for hearing is the power to
order production for review prior to hearing
25
In re Security Life Insurance Co.,
228 F.3d 865, 870-71 (8th Cir. 2000)
26. Education Services |
FAA permits pre-hearing document discovery
from non-parties only if there is a special need
26
COMSAT Corp. v. Nat’l. Sci. Found.,
190 F.3d 269, 275 (4th Cir. 1999)