In Vividus LLC v. Express Scripts, Inc., Civ. No. 16-16187, Dec. 21, 2017, the Ninth Circuit aligned itself with the majority of other courts of appeal in holding that the Federal Arbitration Act (FAA) does not authorize arbitrators to issue document-only subpoenas to third parties outside of a hearing.
The Ninth Circuit relied on a textual reading of the FAA to reach this result.
The FAA gives arbitrators two powers that are relevant here. First, arbitrators may compel the attendance of a person "to attend before them . . . as a witness," and second, arbitrators may compel such person "to bring with him or them" relevant documents. Id. If a person summoned as a witness does not comply, the statute gives the district court in the district in which the arbitrator sits the power to compel the person's attendance before the arbitrator. Id. A plain reading of the text of section 7 reveals that an arbitrator's power to compel the production of documents is limited to production at an arbitration hearing. The phrase "bring with them," referring to documents or other information, is used in conjunction with language granting an arbitrator the power to "summon . . . any person to attend before them." Id. Under this framework, any document productions ordered against third parties can happen only "before" the arbitrator. The text of section 7 grants an arbitrator no freestanding power to order third parties to produce documents other than in the context of a hearing.