Originally from Dispute Resolution Journal

The author highlights a problem in arbitration practice—the ability to enforce an arbitrator’s subpoena for documents and depositions on a third-party witness outside of the enforcing court’s jurisdiction. But should the problem be remedied by amending the Federal Arbitration Act? Or is the danger of tampering with the FAA too great? Tim Krsul argues for a narrow amendment giving district courts nationwide authority to enforce arbitral subpoenas for depositions at the third-party witness’ site when the deposition is intended for use in lieu of the witness’ appearance at the hearing.

Federal courts have taken a narrow view of the law when called upon to enforce an arbitral subpoena. This is particularly true of attempts to obtain discovery. Except in “extraordinary circumstances” or the agreement of the parties, courts have been unwilling to permit wide discovery in arbitration.1 The rationale usually given is that arbitration is supposed to be more expeditious and less expensive than litigation, which can involve extensive, protracted discovery proceedings.2 When discovery is sought by subpoena from individuals or entities that are not parties to the arbitration agreement, the problem of obtaining necessary evidence for the hearing is exacerbated.

Absent an authorizing statute, arbitrators lack the power to compel third parties to appear at a deposition or at a hearing.3 In Tobey v. Bristol County, the court went so far as to suggest that arbitrators had no power at common law to administer an oath, compel the attendance of witnesses, or the production of documents, papers and books of account. Nor could they “insist upon a discovery of facts from the parties under oath.”4