Originally from:

AAA Handbook on Commercial Arbitration, Third Edition

CHAPTER 13

ARBITRAL SUBPOENA POWERS AND PREHEARING DISCOVERY

Paul M. Lurie and Amanda S. MacVey

I. Introduction

Whether arbitrators have the power to issue enforceable pre-hearing subpoenas to non-parties has practical significance for parties to arbitration.  Parties often agree to arbitrate at a convenient location. The location is frequently selected without consideration of how that location will influence access to third-party discovery, or of how courts in that jurisdiction construe an arbitrator’s authority to compel non-party discovery under federal law.  In cases governed by the Federal Arbitration Act (“FAA” or the “Act”), the extent of an arbitrator’s authority over non-parties is controlled by the Act, which does not contain an explicit reference to the availability of pre-hearing discovery from third parties. Courts generally do not recognize a “right” to discovery in an arbitration proceeding. Courts determine the scope of pre-hearing discovery in arbitration as a function of the Act, the underlying arbitration agreement, the applicable arbitration rules, and the arbitrator’s discretion.  Accordingly, court decisions on this topic across jurisdictions reach varied conclusions and are difficult to reconcile. This chapter addresses the applicable AAA rules, available state law arguments and applicable case law regarding third-party discovery under the FAA and the Uniform Arbitration Act (“UAA”), as well as the implications of the new Revised Uniform Arbitration Act (“RUAA”).