By Leslie King O’Neal
Third Party Discovery is Limited in Most Arbitrations
While subpoenaing third parties seeking documents or testimony is common in construction litigation, advocates are sometimes surprised to learn such discovery is more limited in arbitration. Obtaining discovery from third parties in arbitration depends on the arbitration agreement, the arbitration location and applicable law. Third party discovery under the FAA[i] is challenging because most courts have held FAA’s language does not allow discovery.
Amendments to CA Arbitration Law
Recent amendments to CA’s unique arbitration law[ii] broaden availability of third-party discovery in arbitrations there. The amended CA arbitration law provides that arbitrators in all types of cases may issue subpoenas for pre-hearing discovery depositions and for production of documents.[iii] Subject to arbitrator oversight, parties in arbitration have the right to the same discovery available in CA superior court.[iv] The amendment eliminates the old requirement that arbitration agreements had to specifically provide for discovery.[v]
Revised Uniform Arbitration Act Provides Some Options
Outside California, the Revised Uniform Arbitration Act (RUAA), adopted in 23 states and D.C.,[vi] provides options for third party discovery in some cases. Specifically, the RUAA allows arbitrators to permit such discovery as they deem appropriate. It also allows arbitrators to issue subpoenas for witnesses and for document production at “discovery proceedings.”[vii]
When Does State Arbitration Law Apply?
Most federal circuits hold that a “choice of law” clause does not incorporate a state’s arbitration rules into a contract and doesn’t displace the FAA.[viii] Florida case law states the Florida Arbitration Act is incorporated into arbitration agreements involving interstate commerce.[ix] Conflicting SCOTUS decisions on this issue have created further confusion.[x]
Limited Discovery Under the Federal Arbitration Act (FAA)
The Federal Arbitration Act (FAA)[xi] governs arbitrations involving interstate commerce, which is broadly construed. Section 7 of the FAA provides arbitrators with authority to summon witnesses and documents. Notably, Section 7 only mentions summoning witnesses to a hearing; it does not provide for pre-hearing discovery.[xii] This distinction has caused much debate and litigation.
Federal Circuits Split on Third Party Discovery
Federal circuits are split on the third-party discovery issue. The majority holds Section 7 requires a “hearing” to obtain third party testimony or documents. Noting Congress could have provided arbitrators with the power to subpoena third parties but did not, the 11th Circuit concluded that, “9 U.S.C. §7 does not permit pre-hearing depositions and discovery from non-parties.”[xiii] However, courts have allowed “interim” hearings to obtain third party evidence.[xiv]
Circuits Allowing Third Party Discovery
Only the Eighth Circuit, finding arbitrators have implicit power to order document production before a hearing, allows third party discovery under Section 7 without a hearing,[xv] The Fourth Circuit stated pre-hearing discovery might be available if a party showed “special need.” [xvi]
Is There a Virtual Option?
In a pre-COVID opinion, the Eleventh Circuit held Section 7 required a hearing in the arbitrator’s physical presence,”[xvii] precluding virtual hearings to obtain third party testimony or documents. Other circuits have not yet ruled on this issue.
However, a Minnesota district court, citing 8th Circuit precedent, held an arbitrator could issue a discovery deposition subpoena to a third party for a Zoom deposition, even though the arbitration was pending in Minnesota and the witness lived in St. Louis.[xviii] the Since thewitness did not have to travel for the deposition, it complied with Rule 45(c)(1)(A), Fed. R. Civ. Proc.
Takeaways:
Some strategies for obtaining third-party evidence in arbitration are:
- Plan Early: Identify potential third-party evidence needed at the outset.
- Draft Targeted Requests: Make subpoenas specific and narrowly tailored to minimize objections, increasing the likelihood of compliance.
- Review State Law: Evaluate whether applicable state arbitration statutes allow third-party discovery.
- Coordinate with Arbitrators: Work with the arbitrators to schedule hearings for third-party evidence.
- Prepare for Court Enforcement: Anticipate challenges from non-parties; be ready to seek judicial assistance to enforce subpoenas.
[i] 9 U.S.C. §§ 1–16
[ii] CA SB 940 amends several sections of the Cal. Code of Civ. Proc., including §1282.6(a) and §1283.05, regarding arbitrators’ issuing subpoenas for documents and for discovery depositions, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202320240SB940. This law was effective on January 1, 2025.
[iii] §1282.6(a) CA Code Civ Proc. as amended by SB 940.
[iv] §1283.05, CA Code Civ. Proc. as amended by SB 940.
[v] The repeal of section 1283.1 effectively overrules Aixtron Inc. v. Veeco Instruments Inc. 52 Cal.App.5th 360 (6th App. Dist. 2020) (holding arbitrator lacked authority to issue discovery subpoena to third party under CAA); see also R. Miller, New Laws on Discovery in Arbitration, Advocate Magazine (September 2025) https://www.advocatemagazine.com/article/2025-september/new-laws-on-discovery-in-arbitration.
[vi] Revised Uniform Arbitration Act https://www.uniformlaws.org/committees/community-home?CommunityKey=a0ad71d6-085f-4648-857a-e9e893ae2736
[vii] RUAA §17(d); see also, §682.08, Fla. Stat. (2025) and similar state statutes.
[viii] The 1st, 3d, 4th, 5th, 6th, 7th, 8th, 9th Circuits. SeeDialysis Access Center v. RMS Lifeline, 683 F.3d 367 (1st Cir. 2011); Roadway Pkg. Sys. v. Kayser, 257 F.3d 287 (3d Cir. 2001); Porter Hayden v. Century Indemnity Co., 136 F.3d 380 (4th Cir. 1998); Atlantic Aviation v. EBM Group, 11 F.3d 1276 (5th Cir. 1994); Ferro Corp. v. Garrison Ind., 142 F.3d 926 (6th Cir. 1998); Northern Ill. Gas. Co. v. Airco Indus. Gases, 676 F.3d 270 (7th Cir. 1982); UHC Mgmt Co v. Computer Sci., 148 F.3d 992 (8th Cir. 1998); Wolsey Ltd. v. Foodmaker, 144 F.3d 1205 (9th Cir. 1998). However, the 6th Circuit upheld a third-party subpoena under §301 of the Labor Management Relations Act, Am. Fed. of Tel. & Radio Artists v. Wjbk-TV, et al., 164 F.3d 1004 (6th Cir 1999).
[ix] Shotts v. OP Winter Haven, 86 So.3d 456 (Fla. 2012), https://www.casemine.com/judgement/us/5914f385add7b04934982476
[x] Volt Information Sciences v. Bd. Of Trustees of Leland Stanford Junior University, 489 U.S. 468 (1989)(holding CA choice of law clause meant CA arbitration law applied) and Mastrobuono v. Shearson Lehman Hutton 514 U.S. 52 (1995)(NY choice of law clause did not include limitation on arbitrator’s ability to award punitive damages).
[xi] 9 U.S.C. §§ 1–16. This may be because the FAA was enacted in 1925, but the Federal Rules of Civil Procedure, which created modern discovery in civil cases, were not adopted until 1938.
[xii]The Second, Third, Ninth and Eleventh Circuits have ruled that Section 7 requires a hearing to obtain third party evidence. Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, (Section 7 of the FAA does not authorize arbitrators to compel non-parties to produce documents outside a hearing); Hay Group, Inc. v. EBS Partners, (Section 7 limits arbitrators’ authority over non-parties to production at hearings). The 6th Circuit upheld a third-party subpoena under §301 of the Labor Management Relations Act, Am. Fed. of Tel. & Radio Artists v. Wjbk-TV, et al., 164 F.3d 1004 (6th Cir 1999).
[xiii] Managed Care Advisory Group v. Cigna Healthcare, 939 F.3d 1145, 1160 (11th Cir. 2019).
[xiv] See R. Rosenblum, A. Offenhartz, Obtaining Non-Party Discovery Prehearing: The 2d Circuit Closes the Door but Opens a Window, 16 ARIAS Quarterly U.S. 11 (3d Quarter 2009). https://www.arias-us.org/?download=1789 (discussing the 2d Circuit’s “workaround” of a separate hearing for third party evidence).
[xv] In Re: Security Life Ins. Co. of Am. And Duncanson & Holt, Inc. 228 F.3d 865 (8th Cir. 2000), https://law.justia.com/cases/federal/appellate-courts/F3/228/865/478757/ “We thus hold that implicit in an arbitration panel’s power to subpoena relevant documents for production at a hearing is the power to order the production of relevant documents for review by a party prior to the hearing.”
[xvi] COMSAT Corp. v. National Science Foundation, 90 F.3d 269 (1999).
[xvii] Managed Care Advisory Group, supra, note xiv at 1173.