A look at enforceability issues involving subpoenas for documents in the hand of non-parties who reside outside the state where the arbitration is being held.
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 litigation are enforceable nationwide, that is not the case for arbitral subpoenas issued in arbitration proceedings in the United States.1
Because of limitations in the Federal Arbitration Act (FAA), parties may find it difficult to enforce arbitral subpoenas against non-parties who reside outside the state where the arbitration is being 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. It also suggests that the American Arbitration Association (AAA) consider amending its arbitration rules to make clear that arbitrators are authorized to do this.