There is no clear path to securing discovery from third parties prior to an arbitration hearing. Indeed, courts are divided on their authority to enforce third-party subpoenas issued in the context of an arbitration proceeding. In jurisdictions where the enforceability of third-party subpoenas is limited or uncertain, parties may have to consider alternatives.
Suppose that your client is engaged in an arbitration pending in Ohio. At your request, the arbitrator issues a third-party subpoena for a witness to appear in Ohio for a deposition. The witness’s testimony and the documents requested in the subpoena are critical evidence; in fact, failure to secure the materials would put your client at a distinct disadvantage in proving the amount of damages it is owed at the arbitration hearing. The third party’s attorney informs you that the witness will not appear for deposition absent a court order. Thereafter, you cause the federal district court to issue a subpoena pursuant to Rule 45.