The Legends of St. Patrick & Arbitration Discovery

By Leslie King O’Neal

In honor of St. Patrick’s Day, a bit about him and his legends (and the legend of arbitration discovery too)!

Arbitration Discovery – Does It Exist?

As with St. Patrick, third party discovery in arbitration is a subject of legends (and misconceptions). Some practitioners assume that pre-hearing discovery in arbitration is the same as in federal or state court. However, there is a fundamental question whether pre-hearing discovery is allowed under the Federal Arbitration Act (“FAA”).   And, if allowed, what powers do arbitrators have to issue subpoenas, particularly to third parties?

Discovery Under the FAA—Legend or Fact?

The FAA[ii] doesn’t mention discovery, likely because the Federal Rules of Civil Procedure, which created and codified discovery procedures in federal courts, were adopted in 1938, while the FAA was adopted thirteen years earlier in 1925. [iii] (See post, Happy 100th Birthday, FAA! – The Construction ADR Toolbox).

Arbitration–It’s Not Like Litigation!

Since modern construction litigation typically involves document discovery and testimony from third parties, many construction lawyers assume these tools are available in arbitration.  This may lead to unpleasant surprises when a court refuses to enforce an arbitrator’s subpoena to a third party as some have done. This post discusses how courts interpret arbitrators’ powers under the FAA and describes some discovery options.

FAA Allows Arbitrators to “Summon” Witnesses

FAA §7 allows arbitrators to “summon any person to attend before them as a witness” and may require the witness to bring “books, records, documents or papers which may be deemed material as evidence in the case.” The U.S. District Court for the district where the arbitrators are “sitting” may compel  a witness’s attendance or punish them for contempt if they refuse to attend.

The FAA doesn’t address arbitrators’ authority to issue subpoenas to non-parties for testimony or document production, creating challenges for counsel seeking this information. Complicating matters further, the federal circuits interpret FAA §7 differently on this issue.

What Does it Mean? Circuits Split on FAA §7 Interpretation

The Second, Third, Ninth and Eleventh Circuits[iv] have held that FAA §7 doesn’t give arbitrators power to order non-parties to produce documents prior to an arbitration hearing. As the 11^th Circuit stated, “. . .[I]f Congress intended the arbitrators to have the broader power to compel documents from non-parties without summoning the non-party to testify, it could have said so. Accordingly, we conclude that 9 U.S.C. §7 does not permit pre-hearing depositions and discovery from non-parties.”

Eighth & Fourth Circuits Have Different Interpretations

Only the Eighth Circuit holds that FAA §7 gives arbitrators implicit power to order production of relevant documents before a hearing.[v]  The Fourth Circuit allows discovery subpoenas only with a showing of special need or hardship.[vi]

NYC Bar Association “Model Federal Arbitration Summons”

In 2015 the NYC Bar Association[vii] published an annotated “Model Federal Arbitration Summons to Testify and Present Documentary Evidence at an Arbitration Hearing.”[viii]  This is not only a form summons but is also comprehensive guidance on law and practice regarding arbitrators’ issuing a summons (subpoena) for evidence from non-party witnesses. The annotations were updated in a 2024 edition. The Model Summons is an invaluable resource for arbitrators and lawyers, providing practical advice on

Practical Tips for Getting Third Party Information in Arbitration

• Have the arbitrator issue a summons for a preliminary merits hearing; after it’s served on the witness, negotiate an agreement for the requested documents in lieu of testimony. A court held this does not convert the summons into a prohibited discovery subpoena.[ix]
• Hold a telephone or videoconference hearing where documents are submitted electronically. This should be a preliminary merits hearing and the arbitrator should receive the documents as evidence which can be relied upon in the award.
• Look at possible application of state arbitration statutes. Each state has its own arbitration code.[x] Although the FAA preempts contrary state law regarding arbitration and applies in cases involving interstate commerce, state arbitration rules (which may allow discovery) may govern if specifically stated in the arbitration agreement.[xi]

---

[i] Patrick was born in what is now England, Scotland or Wales around the year 390.  He was transported to Ireland by Irish raiders and held captive for 6 years. Ireland has been surrounded by water since the end of the last glacial period and before that it was blanketed in ice—thus, it’s too chilly for cold-blooded creatures. Jennie Cohen, 7 St. Patrick’s Day Legends and Myths Debunked, https://www.history.com/news/st-patricks-day-myths-debunked (last updated February 27, 2024).

[ii] 9 U.S.C.§§ 1- 16. U.S.C. Title 9 – ARBITRATION

[iii]  “. . . The rules allow the parties to a lawsuit to have more control over the litigation process . . . For example, the rules allow the parties to engage in discovery, which is the process of gathering information and evidence from the other side.” A history of the Federal Rules of Civil Procedure | Federal Rules of Civil Procedure

[iv] Life Receivables Tr. v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210, 216 (2d Cir. 2008)Hay Group, Inc. v. E.B.S. Acquisitions Corp., 360 F.3d 404, 407 (3d Cir. 2004); COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269, 275-6 (4^th Cir. 1999); CVS Health Corp. v. Vividus, LLC, 878 F.3d 703, 708 (9^th Cir. 2017); Managed Care Advisory v. CIGNA, 939 F.3d 1145, 1159 (11^th Cir. 2019).

[v] In Re Sec. Life Ins. of Am., 228 F.3d 865, 870-71 (8th Cir. 2000).

[vi] COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269, 275-6 (4^th Cir. 1999); The COMSAT Court did not attempt to define “special need,” except to observe that at a minimum, a party must demonstrate that the information it seeks is otherwise unavailable. Comsat Corp. v. Nat’l Sci. Found., 190 F.3d 269, 276 (4th Cir. 1999)

[vii] International Commercial Disputes Committee and Arbitration Committee

[viii] 20221270_ModelFederalArbitrationSummons.pdf

[ix] Washington Nat’l Ins. Co. v. OBEX Group LLC, 958 F.3d 126, 136 (2d Cir. 2020)

[x] Thirty-five states adopted the Uniform Arbitration Act. California and New York have unique arbitration acts. Eighteen states have now adopted the Revised Uniform Arbitration Act.

[xi] “When parties have agreed to abide by state rules of arbitration, enforcing those rules according to the terms of the agreement is fully consistent with the goals of the FAA.” Id.” Ario v. Underwriting Members of Syndicate 53 at Lloyds, 618 F.3d 277, 288 (3d Cir. 2010). Note this does not mean the parties can “opt out” of the FAA. Id. The FAA applies to all contracts involving interstate commerce (which is broadly defined) and preempts contrary state law. Southland Corp. v. Keating, 465 U.S. 1 (1984). In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983), the Supreme Court held that the FAA created a body of federal substantive law of arbitrability and that the FAA governed in state and federal court. Florida Statute 682.08(4), part of the Florida Arbitration Code, allows arbitrators to issue subpoenas for attendance of a witness and production of records at a discovery proceeding. If an arbitration agreement called for the Florida Arbitration Code to govern, the arbitrator could issue discovery subpoenas.