When Federal Rules Change Arbitration May Feel the Change, Too

Subpoenas, Privilege Logs, and Machine-Generated Evidence

Every few years, the federal rules shift just enough to make trial lawyers recalibrate their approach. These changes don’t apply directly to arbitration, of course. A big point of arbitration is to avoid overly rigid rules and the expense they can add. Still, these types of changes may affect things in our hearing rooms in some way.

Counsel bring their expectations with them to arbitrations. And arbitrators may reach for familiar frameworks when the parties disagree. The latest amendments—and proposed amendments—to the Federal Rules of Civil Procedure touch three areas likely to affect arbitration: subpoenas, privilege logs, and machine-generated evidence.

Let’s take a look at how these developments may affect arbitration practice, not because the rules are binding in arbitration, but because they influence the legal environment we work in.

Subpoenas: A Federal Tune-Up for an Arbitration Workhorse

Subpoenas occupy a curious place in arbitration. Arbitrators authorize them but cannot enforce them. Section 7 of the Federal Arbitration Act sends counsel to court for that. Once they arrive, Fed. R. Civ. P. 45 governs. That means any change to Rule 45 affects arbitration. The amendments to Rule 45 are still only proposed and in the public-comment stage, but they point in a clear direction.

The proposed amendments modernize rule 45 in several useful ways: more flexible service options, clarified timing, and cleaner mechanics for witness fees. But the most important change for arbitration is the proposed rule’s explicit recognition of remote testimony. Arbitrators embraced remote testimony long before federal courts did. Many arbitrators now treat it as routine. But courts enforcing arbitral subpoenas have been left to figure out whether the existing rule allows a subpoena to compel a remote appearance before the panel.

As noted in my earlier series of articles on arbitration subpoenas (more properly called “summonses”) some courts have embraced remote testimony in arbitration. Some have not. The proposed text of new Rule 45 removes the guesswork.

A subpoena may require remote testimony as long as the place of compliance stays within the familiar 100-mile radius. If this change is adopted - which is likely- it could have a significant impact in arbitration. It gives courts clearer authority and makes enforcement of arbitral subpoenas more predictable. When a key witness sits in another state, or when an expert can appear for two hours on video rather than losing two days to travel, these details matter. Arbitrators who regularly manage multi-jurisdictional matters and the lawyers working on these matters will probably feel this change quickly.

Privilege Logs: An Early-Planning Approach That Could Spill Into Arbitrations

Unlike the proposed Rule 45 changes, the privilege-log amendments are final. The changes to Rules 16 and 26 took effect on December 1, 2025. They move privilege-log planning to the front end of the case. Parties must now talk about privilege-log methodology at the Rule 26(f) conference and build that plan into the discovery schedule.

Arbitration, of course, doesn’t require privilege logs at all. That’s part of its efficiency. But arbitration panels often borrow federal norms when the parties clash over discovery – more properly “information exchange” in arbitration parlance.

With the rules now treating privilege-log planning as something that happens early rather than at the tail end of document production, parties may arrive at the preliminary hearing expecting to deal with it up front. And arbitrators will likely find it easier to incorporate privilege-handling into the initial case plan rather than waiting for a dispute months later.

And because arbitration emphasizes proportionality even more than Rule 26, these changes may reinforce the use of simplified privilege summaries. The federal rules now acknowledge that the “form” of a privilege log is flexible. Arbitrator are likely to adopt the sentiment of the rule to justify streamlined logging that fits the scale of the dispute rather than overwhelming it.

In short, it is likely privilege planning will happen earlier, and arbitrators may address it at the outset.

Machine-Generated Evidence: A New Rule For Automated Expertise

The proposed new Federal Rule of Evidence 707 is still in the public-comment period. So far, it reflects a growing need to address machine-generated material that resembles expert reasoning.

Some of my technically savvy colleagues would here point out that what we now call artificial intelligence based on machine learning is not new at all. It has been around for a long time, playing chess and helping to fly airplanes, among other things. But AI has come into prominence fairly recently and has generated plenty of issues as it has become more widely adopted.

The draft rule directs courts to evaluate such evidence under the same reliability framework as Rule 702, governing expert testimony. If the machine output performs expert-like analysis, it must be shown to be reliable in the same way.

Arbitrators are not bound by the federal rules of evidence. Many of us actively resist allowing them to govern our arbitrations unless the arbitration clause says otherwise. Yet, those rules often provide useful guidance for handling technically complex evidence. As machine learning and automated analysis continue to creep into commercial disputes, arbitrators will need structured ways to evaluate them. Rule 707 provides a starting point.

That does not mean arbitrators will exclude these materials. Arbitrators tend to admit evidence freely and weigh it later. After all they are not charged with protecting jurors from unreliable evidence as judges are. They are charged with weighing the evidence the parties present. They may allow it and believe it. Or they may allow it, find it unreliable, and give it no weight at all.

Still, proposed Rule 707 would give arbitrators some criteria for assessing reliability. It will also encourage parties to provide more foundation when they rely on algorithmic or AI-driven exhibits. Arbitrators never were likely to rely on an unexplained “black box” printout, but the rule provides guidance to lawyers too, helping to put everyone on the same page.

In short, if adopted, Rule 707 will likely shape arbitration more than might be expected of a rule that doesn’t even apply in arbitration—not through compulsion, but through practical influence.

Practical Adjustment

None of these developments changes arbitration’s fundamentals. Arbitrators will remain free to tailor discovery, relax formalities, and admit evidence flexibly. But the federal rules still serve as kind of a procedural influence.

Subpoenas may become easier to enforce—especially for remote testimony—if the proposed Rule 45 amendment is ultimately adopted. Privilege-log expectations may shift to the front of the case under the new Rules 16 and 26. And machine-generated evidence may soon be governed by more uniform reliability standards as Rule 707 works its way through the comment process.

Arbitration practice evolves in increments. These federal changes—some already final, others still on the horizon—will likely be part of that evolution. So, it’s worth paying attention to them.