Originally from:

AAA Handbook on Arbitration Practice - Second Edition

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CHAPTER 29

THE USE OF SUBPOENAS IN ARBITRATION

Leslie Trager

I. Introduction

Documents in the possession or under the control of non-parties are
sometimes vital to an arbitration. For this reason the ability to subpoena
those documents is crucial. While subpoenas used in court litigation are
enforceable nationwide, that is not the case for arbitral subpoenas issued
in arbitration proceedings in the United States.1

The extent to which a subpoena may be enforced (and arbitrators
should only issue them where they can be enforced) depends on both
Federal and applicable state law. The Federal Arbitration Act (FAA) is
usually held to limit enforcement of subpoenas to the state where the
arbitration is being held, or, if the subpoena can be enforced in Federal
court, to district court’s boundaries. But there may be situations where,
under the Revised Uniform Arbitration Act (RUAA), a subpoena may be
enforced against a non-resident of the state in which the arbitration is held.

This article discusses these subpoena issues and how courts have dealt
with them. Finally, it suggests that the problem of enforcing document
subpoenas on non-parties who reside out of state could be overcome by
having the arbitrators move the hearing location (for document production
purposes only) to the state where the non-party resides.

II. FAA Section 7

The use of subpoenas in arbitration is governed by Section 7 of the
FAA, which makes Section 45 of the Federal Rules of Civil Procedure