United States:
The Federal Arbitration Act Does Not Grant Arbitrators The Power To Compel Pre-Hearing Production Of Documents From Non-Parties
22 January 2018
Carlton Fields
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While the FAA grants arbitrators authority to compel non-parties
to appear before them and produce documents at a hearing, it does
not authorize them to compel pre-hearing production. The Ninth
Circuit Court of Appeals joined the Second, Third and Fourth
Circuits in so holding. The Eighth Circuit, however, disagrees,
having ruled previously that "implicit in an arbitration
panel's power to subpoena relevant documents for production at
a hearing is the power to order the production of relevant
documents for review by a party prior to the hearing." It is
also worth noting, as the Ninth Circuit did, that "because
arbitration is a creation of contract, arbitration agreements may
provide arbitrators greater discovery powers with respect to the
parties bound by such agreements." CVS Health Corp. v. Vividus, LLC,
Case No. 16-16187 (9th Cir. Dec. 21, 2017).
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