Arbitral Subpoena Powers and Prehearing Discovery - Chapter 13 - AAA Handbook on Commercial Arbitration, Third Edition
Paul M. Lurie is the Senior Member of the Construction Law Group at Chicago’s Schiff Hardin LLP. He serves on the AAA’s National Construction Dispute Resolution Committee and is a Fellow of the American College of Construction Lawyers and the College of Commercial Arbitrators. He serves on the Large Complex Case AAA Panel. Mr. Lurie earned a B.A. and J.D. from the University of Michigan.
Amanda S. MacVey is a Partner in the Construction Law Group at Schiff Hardin LLP. She received her B.S. and J.D. from the University of Illinois.
ARBITRAL SUBPOENA POWERS AND PREHEARING DISCOVERY
Paul M. Lurie and Amanda S. MacVey
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”).