February 13, 2020 Articles

Arbitral Subpoenas to Third Parties for Prehearing Discovery: Where the Circuits Stand

A recent decision by the Eleventh Circuit sheds additional light on the reach and enforceability of prehearing discovery subpoenas issued by arbitrators to third parties.

By Sheila J. Carpenter

Section 7 of the Federal Arbitration Act

There has been a split in the circuits for years over the question of whether a subpoena issued to third parties by an arbitration panel for prehearing discovery is enforceable in federal courts. Recently the Eleventh Circuit weighed in, joining the majority of circuits, which have held that arbitration subpoenas can compel attendance only for a hearing before the panel and are not enforceable against third parties for prehearing discovery. Managed Care Advisory Grp. v. CIGNA (MCAG v. CIGNA), 939 F.3d 1145 (11th Cir. 2019). The Federal Arbitration Act (FAA), 9 U.S.C. ยง 1 et seq., was enacted in 1925, prior to the adoption of the Federal Rules of Civil Procedure and well prior to current litigation practice in which the cost of discovery can exceed the cost of trial.

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