Author: Armand M. Paré Jr.*
Published: December 2014
Recent amendments to Federal Rules of Civil Procedure (“FRCP”) 45 allow for nationwide service of process of subpoenas (Rule 45(b)(2)), delete a former section requiring that a subpoena be issued “from the court for the district where the deposition is to be taken” (former Rule 45(a)(2)(B)) and provide for initial enforcement of the subpoena in the “court for the district where compliance is required” (Rule 45(g)). An intriguing question is whether these changes might provide arbitrators operating under the Federal Arbitration Act (“FAA”) with nationwide subpoena power. It is submitted that it is possible that such power may exist, at least where an arbitration clause or the governing arbitration rules are amended to provide that arbitrators may, in a special case, “sit” at a location other than the agreed location for the main arbitration to be heard in order to obtain documents or hear testimony from a third party.
II. FEDERAL ARBITRATION ACT BACKGROUND
Section 7 of the FAA provides that arbitrators, or a majority of them:
may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document or paper which may be deemed material as evidence in the case …Said summons … shall be served in the same manner as subpoenas to appear and testify before the court; if any person so summoned to testify shall refuse or neglect to obey said summons, upon petition the United States district court for the district in which such arbitrators, or a majority of them, are sitting, may compel the attendance of such person or persons … or punish said person or persons for contempt …
III. REQUIREMENT FOR A HEARING
First, there has been judicial debate as to whether arbitrators have the power to issue a subpoena for documents alone without a hearing and attendance of a …
*Partner, McLaughlin & Stern, LLP, New York, New York. The views expressed herein are solely those of the author.