Jottings By An Employer's Lawyer

Tuesday, March 16, 2004

Arbitrator Has No Power To Compel Pre-Hearing Production of Documents By 3rd Party


In what it found to be a straight forward case of statutory interpretation, the 3rd Circuit holds that the Federal Arbitration Act does not grant an arbitration panel the right to issue pre-hearing subpoenas for documents to a 3rd party. Hay Group, Inc. v. EBS Acquisition Corp. (3rd Cir. 3/12/04) [pdf]. In so holding, the Court noted it was differing with the 8th Circuit which had held that such power existed and the 4th Circuit which held that such power existed where a "special need" is found. All is not lost for the party needing the documents however as Judge Cherthoff in his concurrence outlined a way to obtain the documents within the confines of the FAA:
Under section 7 of the Federal Arbitration Act, arbitrators have the power to compel a third-party witness to appear with documents before a single arbitrator, who can then adjourn the proceedings. This gives the arbitration panel the effective ability to require delivery of documents from a third-party in advance, notwithstanding the limitations of section 7 of the FAA. In many instances, of course, the inconvenience of making such a personal appearance may well prompt the witness to deliver the documents and waive presence.
Any guess what the next step will be?

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