September 11, 2018 Articles

Arbitrator Authority to Compel Production of Documents from Third Parties

By Sunu M. Pillai

Does an arbitrator possess the authority under Federal Arbitration Act (FAA) to compel production of documents from a third party prior to a hearing? The U.S. Court of Appeals for the Ninth Circuit has agreed with the Second and Third Circuits in holding that an arbitrator’s power to compel production of documents from a third party is limited to production at an arbitration hearing. CVS Health Corp. v. Vividus, LLC, 878 F.3d 703 (9th Cir. 2017). On the other hand, the Eighth Circuit has allowed arbitrators to order production of documents prior to the hearing, and the Sixth Circuit has indicated agreement with this position. The Fourth Circuit has stated that it may allow prehearing document production only under unusual circumstances.

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