Discovery from Non-Parties in Arbitration

Discovery from Non-Parties in Arbitration

by Onyinyechi Muilenburg

There is split of authority of whether or not arbitrators may issue such subpoenas to a non-party for the purposes of discovery.  A majority of federal courts hold that if a person is not a party to the arbitration agreement, such non-party has not subjected themselves to the authority of the arbitrators and the arbitrators’ authority to summon non-parties is limited to the provisions of Section 7 of the FAA.  Recently, in Managed Care Advisory Group, LLC v CIGNA Healthcare, Inc., 2019 WL 4464301 (11th Circuit. Sept. 18, 2019) the 11th Circuit literally interpreted Section 7 of the FAA holding that arbitrators can only require summonsed non-parties to appear in the physical presence of the arbitrator and not by video conferencing.  The Court also held that Section 7 discovery from a non-party can only be obtained when the non-party physically appears at the hearing.  The Court’s found that the plain meaning of the statute supports its decision.  The opinion quotes from Section 7, that allows arbitrators to “summon in writing any person to attend before them . . . as a witness and in a proper case to bring with the witness . . . any book, record, document, or paper which may be deemed material evidence in the case.”  The same reasoning supports the Court’s holding that the FAA does not permit pre-hearing discovery from non-parties.

The opinion literally restricts an arbitrator’s subpoena power to situations in which the non-party has been called to appear in the physical presence of the arbitrator and to hand over the documents at that time.  In some cases, arbitrators have started the hearing early for the purpose of subpoenaing a non-party witness to appear and adjourning the hearing after the needed testimony and documents are procured.

No information in this article is intended to constitute legal advice. For specific legal advice, please contact an attorney.

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