Subpoena Power of Arbitrators Over Third Parties

Courts Differ on Subpoena Power of Arbitrators Over Third Parties is an interesting March 25, 2009 New York Law Journal article (registration required). Though the article focuses on FAA commercial arbitration, the article is also relevant to labor arbitration.   As the article outlines, there is a conflict in the circuits over the ability to issue third party subpoenas. The article states:

For the past decade, practitioners within the Fourth and Eighth circuits have had some ability to compel non-party document discovery in advance of an arbitration hearing based on circuit case law, while practitioners within the Third Circuit have lacked such an option because that circuit court has ruled that arbitrators have no authority to compel pre-hearing document discovery from a non-party.

On Nov. 25, 2008, the U.S. Court of Appeals for the Second Circuit staked its claim in the ongoing debate with its decision in Life Receivables Trust v. Syndicate 102 at Lloyd's of London, which presented the question whether an arbitrator has authority to compel pre-hearing document discovery from a non-party.²

In agreement with the Third Circuit's opinion in Hay Group Inc. v. E.B.S. Acquisition Corp.,³ the Second Circuit held that under §7 of the FAA, arbitrators are not authorized to "issue pre-hearing document subpoenas to entities not parties to the arbitration proceeding."

This article examines the treatment accorded this issue by prior circuit court decisions and its treatment by the Second Circuit in Life Receivables Trust.

Mitchell H. Rubinstein