Article: Welcome to Our Dispute: Subpoenas and Summonses in Arbitration. Part 3 - A Practical Approach

In the last couple of articles, we looked at arbitrators’ power to issue subpoenas – more properly called summonses -- to non-parties.  And we suggested that it was worth asking four questions when deciding whether an arbitration summons makes sense: 1) Is the information requested necessary to allow a fair and informed decision?  2) Does the arbitrator (or panel) have the power to issue the summons?  3)  Is the non-party likely to comply?  4) What can we do to make compliance more likely?  

We began with discovery.  We’ll get to hearing subpoenas at the end.

The first question goes to whether it is necessary to trouble strangers to the dispute with the cost and inconvenience of providing testimony or documents.  Sometimes, the information is not important to a fair resolution of the dispute.  Or it may be obtained in some other, less expensive and disruptive way. 

Assuming that the information is important to the dispute, we next considered the second question:  does the arbitrator (or panel) have authority to summons non-parties to provide testimony or documents before the hearing.  Most courts that have considered the matter have decided they do not.  Section 7 of the FAA, which provides arbitrators’ power to issues summonses, says arbitrators can summon witnesses to come “before” them to testify and bring documents.  A deposition or response to a document request is not “before” them. 

Some courts, most notably in the Eighth Circuit, do allow arbitrators to issue discovery summonses.  But a leading case limited that to documents, while a later decision by a Magistrate Judge allowed a deposition by Zoom. 

We also saw that there is a work-around. Because the FFA says arbitrators have the power to summons witnesses to appear “before them” and bring documents, arbitrators can bring the hearing to the witness. They can hold a special session where the witness could be subpoenaed by a court under Fed. R. Civ. Pro. 45.

More on that later.

How about a state statute?

One more thing to consider is whether a state arbitration statute allows discovery.  Many states have enacted a version of the Uniform Arbitration Act (UAA).  Curiously, they tend to differ quite a bit.  The Minnesota version of the UAA allows arbitrators the same power to order discovery as courts have.  And their subpoenas are enforced the same way a court subpoena would be.  Minn. Stat. § 572B.17.

Illinois is a little different.  “Arbitrators may permit a deposition to be taken, in the manner and upon the terms designated by the arbitrators, of a witness who cannot be subpoenaed or is unable to attend the hearing.” 710 ILCS 5/7.  Other states undoubtedly have other spins on this. 

The thing is, because most commercial arbitrations involve interstate commerce, the FAA governs them unless the parties agree otherwise.  And it is unclear what the reach of a state subpoena under a state arbitration act is out of that state.  That will depend on the other state’s law and procedures.  And, importantly, the FAA preempts any inconsistent state laws if it applies. 

That all sounds like a fair amount of fodder in some cases for complicated challenges in court to arbitral subpoenas or summonses.  Of course, that is what parties are trying to avoid when they put an arbitration clause in their contract.  Still, in a case with in-state state witnesses, if a state arbitration statute applies, the state statute may be handy for pre-hearing discovery of non-parties. 

A practical approach

This all brings us to the third question:  Is the summonsed party likely to comply?  This is important because, the more likely it is that a party will obey a summons, the more likely it is that you can avoid the expense and delay of getting a court to enforce it.  Given the questions that we have seen about discovery summonses to non-parties, it seems wise to start with using the most common way to go about this: having a separate part of the hearing to take evidence from non -parties.

This has benefits.  It is what folks are used to, and therefore more likely to succeed.  If counsel for the non-party understands that the summons will be enforced, they are likely to comply rather than wait for a court to enforce it.  And in that case, the party that wants the information will likely be able to negotiate something more efficient than a partial hearing before the arbitrator or panel.  The witness may agree to sit for a deposition, perhaps by Zoom to make it easier.  If all the party really want is documents, the non-party may just provide them.

The key, though, is to use a summons the non-party’s counsel is apt to understand will be enforced in the end.  They are then more likely to forego the expense and effort of fighting it in court and negotiate a way to provide the information in a more efficient way.

Now let’s turn to the next question: what can we do to make compliance more likely?

Form matters

We already saw that sticking with the more standard means of obtaining hearing pre-hearing information is more likely to encourage compliance.  Here is another way: focusing on the form of the summons.

Very often, summonses I am asked to issue are state subpoena forms. That doesn’t really fit.  It essentially provides a greeting from the people of the State and invites the subpoenaed person to put aside all business and come give testimony and/or provide documents. Most arbitrations I do are governed by the FAA, so — as I keep harping on — the “subpoenas” are actually summonses, and the state may or may not have much to do with it them.  True, if there isn’t federal jurisdiction, a state court may enforce a summons under the FAA.  But it still makes more sense to me to refer to the actual source of power, FAA Section 7.  And it makes sense to lay out in the document that statute and any rules that apply so summonsed non-parties can verify for themselves what the rules are. That makes them more likely to comply.

This isn’t my original ideal. The New York Bar did an excellent job on this, providing an annotated form that can be used as a starting point.  See Report of the New York City Bar Association, A MODEL FEDERAL ARBITRATION SUMMONS TO TESTIFY AND PRESENT DOCUMENTARY EVIDENCE AT AN ARBITRATION HEARING (2024). https://www.nycbar.org/wp-content/uploads/2015/05/20221270_ModelFederalArbitrationSummons.pdf

You will want to have a look at that before you ask for your next arbitral summons.  There is a wealth of information there.    

Hearing summonses

 So far, we have focused on discovery summonses.  Let’s have a quick look at hearing summonses. 

There is no doubt that arbitrators have authority to issue these under FAA section 7. The real question is where they can order witnesses to appear.  Since enforcement authority comes under Fed. R. Civ. P. 45, this means the witness can’t be required to travel more than 100 miles in most cases. 

So, once again, arbitrators may need to move the hearing to the witness to get the testimony or information. 

 The most efficient way to do that is likely to proceed by Zoom or other online conferencing app. Still, check the law in your jurisdiction.  At least one court said that a video conference doesn’t meet the “before the arbitrator” requirement of FAA section 7.  Broumand v. Joseph, No. 20-cv-9137 (S.D. N.Y., Feb. 27, 2021).  But that case is an outlier.  Courts have become increasingly receptive to video conferencing in recent years. 

 Thus, many issues with non-party witnesses can be efficiently handled using online conferencing and electronic provision of documents. The witness can remain in his or her office and the arbitrators can remain in their hearing room. 

It still makes sense for hearing summonses to be in the right form, as discussed above.  

In summary

 Arbitral summonses can get complicated unless you plan ahead and understand the law and rules that apply.  If you do, though, you should be able to get the information needed for a fair hearing without the delay and expense of judicial intervention.