arbitrator subpoenas: are they worth the paper they are printed on?

Education Services | 1

ARBITRATOR SUBPOENAS:Are They Worth The Paper They Are Printed On?

WebinarDecember 3, 2015

EDUCATION SERVICES

Education Services |

Disclaimer

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This presentation is © 2015 American Arbitration Association, Inc. All rights reserved. No part of this document may be reproduced, transmitted or otherwise distributed in any form or by any means, electronic or mechanical, including by photocopying, facsimile transmission, recording, rekeying or using any information storage and retrieval system, without written permission from the American Arbitration Association, Inc. Any reproduction, transmission or distribution of this form or any of the material herein is prohibited and is in violation of US and international law. American Arbitration Association, Inc. expressly disclaims any liability in connection with use of this presentation or its contents by any third party.

The views expressed by panelists in this webcast are not necessarily those of the American Arbitration Association, Inc. The American Arbitration Association, Inc. assumes no responsibility for the content and materials presented by speakers during the webcast.


Speaker(s)

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William AndrewsAndrews Myers Houston, TX

Donald W. GregoryKegler Brown Hill + RitterColumbus, OH


Goals

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1To learn whether Arbitrator subpoenas to third-party witnesses are effective

2And how third parties can be encouraged to participate in arbitration proceedings


Look at the AAA Rules.

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If in doubt…


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 …

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What does Federal Arbitration Act

(“FAA”) provide?

Section 7: Arbitrators may summon person or his records “as evidence in the case.”

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What is the authority of an arbitrator really?

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What is the authority of an arbitrator really?

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Borrowed from Federal Court in District where

panel sits

No contempt power for Panel


So what is the authority of the court?

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Fed. R. Civ. P. 45 Subpoena

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Issued from court where action is pending


Only good within 100miles of where person

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resides is employed

regularly transacts business


Law is Unsettled despite FAA

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Territorial Restrictions

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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)


So is pre-hearing third-party discovery

(by subpoena) permitted or not?

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Schools of Thought

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Only at the hearing

At pre-hearing or in discovery

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Arbitrator power to subpoena document production limited by FAA Section 7 language to situations where non-party called to appear

in presence of arbitrator

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Hay Group, Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404, (3d Cir. 2004)


What creative solutions are

available?20


If Mohammed will not go to the mountain, the mountain must come to Mohammed.


What creative solutions are available?

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“Pre-merits” hearing at location of witness

Bifurcate hearing and move hearing where non-party witness resides


Schools of Thought

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Only at the hearing

At pre-hearing or in discovery

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Implicit in an arbitration panel’s power to subpoena documents for hearing is the power to

order production for review prior to hearing

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In re Security Life Insurance Co., 228 F.3d 865, 870-71 (8th Cir. 2000)


FAA permits pre-hearing document discovery from non-parties only if there is a special need

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COMSAT Corp. v. Nat’l. Sci. Found., 190 F.3d 269, 275 (4th Cir. 1999)


Practice Tips for Advocates

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Know the law in your federal district1

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Be prepared to prove a “special need”2

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Suggest creative solutions to the panel3

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Seek agreement of opposing counsel to the third-party approach4

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Practice Tips for Arbitrators

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Ask parties to brief the law in your state and/or federal circuit1

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Encourage agreement of counsel for parties2

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Move “hearing” to where non-party witness or documents reside3

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Consider sending only one arbitrator to that venue to minimize costs4

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Thank you for attending. Please visit our website at www.aaau.org to see additional program offerings.

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