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Arbitration subpoena to non-party enforced
November 22, 2005 by Ross Runkel at LawMemo
The Second Circuit has not decided whether it will enforce an arbitration subpoena to a non-party compelling pre-hearing depositions or pre-hearing document discovery.
In Stolt-Nielsen SA v. Celanese AG (2nd Cir 11/21/2005) the arbitration panel issued subpoenas to compel attendance at a hearing that was scheduled in advance of a "merits hearing." The party opposing the subpoenas argued that this was a "thinly disguised effort to obtain pre-hearing discovery, and that Federal Arbitration Act (FAA) Section 7 does not authorize that.
Rather than decide whether FAA Section 7 authorizes non-party subpoenas for the purpose of discovery (rather than for compelling attendance at an arbitration hearing), the court decided that these subpoenas were actually not discovery subpoenas.
- There was no order to appear for a deposition.
- Testimony was taken before the arbitrators, who made rulings on admissibility and privilege.
- The testimony became part of the arbitration record.
- The fact that the hearing was preliminary to later hearings did not turn this into a discovery device.
My view: FAA Section 7 authorizes arbitrators to "summon in writing any person to attend before them ...." That's exactly what happened. The attempt to characterize the subpoenas as being for the purpose of discovery really misses the point. The point is that the facts fit what the statute says, and the statute does not focus on the purpose of the subpoenas.
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