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.