January 29, 2020 Practice Points

Eleventh Circuit Limits Non-Party Subpoena Powers of Arbitrators to In-Person Hearings

The decision does not address whether a hearing can be commenced for the taking of testimony and documents from non-parties during the discovery period.

By Robert L. Rothman and Rebecca Lunceford Kolb

The Eleventh Circuit has joined four other circuit courts in holding that Section 7 of the Federal Arbitration Act (FAA) does not authorize arbitrators to issue pre-hearing deposition or discovery subpoenas to non-parties. 

In Managed Care Advisory Group, LLC v. Cigna Healthcare, Inc., 939 F.3d 1145 (11th Cir. 2019), the Eleventh Circuit joined the Second, Third, Fourth, and Ninth Circuits in holding that while Section 7  of the FAA allows arbitrators to compel a non-party witness to attend an arbitration hearing and bring documents with them, it does not permit subpoenas for pre-hearing depositions or for documents only.

In Managed Care, the arbitrator issued a subpoena for a non-party witness to appear via video conference and produce certain documents to the parties in advance of giving testimony. The Eleventh Circuit rejected that approach, finding that the plain language of Section 7 of the FAA “confers the power to compel a non-party to attend an arbitration hearing and bring documents, but it is silent regarding the power to compel documents from non-parties without summoning the non-party to testify.” Managed Care, 939 F.3d at 1159. Moreover, the appearance must be in person at the arbitration hearing, not by videoconference as had been provided in the subpoena at issue in Managed Care. Quoting from an opinion by then-Judge Samuel Alito in Hay Group, Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404, 407 (3d Cir. 2004), the Eleventh Circuit “found that the plain language of Section 7 ‘unambiguously restricts an arbitrator’s subpoena power to situations in which the non-party has been called to appear in the physical presence of the arbitrator and to hand over the documents at that time.’” Managed Care 939 F.3d at 1159.

Compelling attendance of witnesses who reside outside the arbitral forum is not a problem, the Eleventh Circuit noted, because Section 7 of the FAA contains a general reference to Rule 45  of the Federal Rules of Civil Procedure, which through a 2013 amendment authorized nationwide service. Thus, an arbitrator may issue a subpoena to a person outside of the district in which the arbitrator sits. Upon refusal of the witness to comply, Section 7 allows the district court in the district in which the arbitrator sits to enforce the subpoena. Managed Care, 939 F.3d at 1158.

While a witness who does not reside in the arbitral jurisdiction may object to the burden of traveling to the arbitral site in order to testify and produce documents, it will be up to the district court to resolve any objections based on “traditional notions of fairness and reasonableness, by weighing the burdens imposed on the summonsed parties against the federal interest, before exercising personal jurisdiction.” Managed Care 939 F.3d at 1158. However, the Eleventh Circuit noted, “[W]hen nationwide service is involved, ‘it is only in highly unusual cases that inconvenience will rise to a level of constitutional concern.’” Id. (citing Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 946, 948 (11th Cir. 1997)).

The decision does not address the question of whether, if needed, a hearing can be commenced for the taking of testimony and documents from non-parties during the discovery period. If so, and absent a cooperative non-party witness who is willing to voluntarily turn over documents to counsel in advance of a hearing, it may be more efficient than expecting counsel and the arbitrator to review and analyze all documents in real time at a final merits hearing.

Robert L. Rothman is a partner and Rebecca Lunceford Kolb is a senior associate at Arnall Golden Gregory LLP, in Atlanta, Georgia. 


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