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

Sheila J Carpenter


  • The Eleventh Circuit recently clarified the scope of arbitrator authority in enforcing subpoenas, specifically addressing whether subpoenas can compel third-party attendance for prehearing discovery.
  • The debate centers on whether the FAA implicitly authorizes arbitrators to order prehearing discovery, considering the statute's silence on the matter and its enactment before modern discovery practices.
  • Proponents argue that such authority is necessary for efficiency, while critics contend that the FAA's language is clear and limits arbitrators to compelling testimony and document production only for hearings.
  • The majority of circuits, including the Eleventh, Ninth, and Second Circuits, have interpreted the FAA narrowly. However, the Fourth Circuit has adopted a unique stance.
Arbitral Subpoenas to Third Parties for Prehearing Discovery: Where the Circuits Stand
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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. § 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.

Section 7 of the FAA, 9 U.S.C. § 7, is explicit in its conferral of authority on arbitrators with respect to subpoenas. It reads in its entirety:

The arbitrators selected either as prescribed in this title or otherwise, or a majority of them, may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case. The fees for such attendance shall be the same as the fees of witnesses before masters of the United States courts. Said summons shall issue in the name of the arbitrator or arbitrators, or a majority of them, and shall be signed by the arbitrators, or a majority of them, and shall be directed to the said person and shall be served in the same manner as subpoenas to appear and testify before the court; if any person or persons so summoned to testify shall refuse or neglect to obey said summons, upon petition the United States district court for the district in which such arbitrators, or a majority of them, are sitting may compel the attendance of such person or persons before said arbitrator or arbitrators, or punish said person or persons for contempt in the same manner provided by law for securing the attendance of witnesses or their punishment for neglect or refusal to attend in the courts of the United States.

Id. (italics and boldface added).

The debate over arbitrator authority is essentially whether, in addition to this explicit authority to compel testimony and document production before at least one member of an arbitration panel, authority to order prehearing discovery is “implicit” in the statute.

Proponents of the “implicit” view argue that the FAA does not address prehearing discovery because the law was passed before modern discovery practices existed. They note that it would be a waste of everyone’s time to require every third party from whom documents or testimony is desired to appear before the arbitration panel. Requiring an actual hearing would also entail extra expense for both the third party and the parties to the arbitration, especially if the third party is located far from where the arbitration hearing is to be held. In the past, one or more of the arbitrators had to travel to the third party’s location and hold a special hearing just for the discovery.


The Eleventh Circuit’s per curiam opinion in MCAG v. CIGNA provides guidance on three important issues: (1) service of process for arbitral subpoenas, (2) where an arbitral subpoena on a third party can be enforced, and (3) whether third parties may be subpoenaed for prehearing discovery. The subpoena disputes in the case arose after the arbitrator issued subpoenas summoning third parties in other locations to participate in the arbitration hearing by video and to produce documents. The Eleventh Circuit determined that the language of section 7 is unambiguous and thus its plain meaning must be used in resolving the issues.

Service of arbitral summonses. The court noted that the 2013 revisions to Federal Rule of Civil Procedure 45 discarded the 100-mile limit on service of subpoenas in favor of nationwide service. The question before the court was whether the 2013 change to Rule 45 for federal court subpoenas changed the reach of an arbitral subpoena to nationwide as well. The court opined that it did because section 7 says that arbitral subpoenas “shall be served in the same manner as subpoenas to appear and testify before the court. . . .” The statute does not refer to any particular rule or statute but speaks generally to how federal court subpoenas are served. Thus, the court held that the amendment to Rule 45 was to be read into section 7 and it now allows nationwide service.

The Supreme Court last term issued a 7–1 opinion (Justice Kavanaugh not participating) authored by Chief Justice Roberts discussing the issue of when a new rule or law should be read into an older statute. In Jam v. International Finance Corp., 139 S. Ct. 759 (2019), the Court outlined the canons of statutory construction it applies when facing this question:

According to the “reference” canon, when a statute refers to a general subject, the statute adopts the law on that subject as it exists whenever a question under the statute arises. 2 J. Sutherland, Statutory Construction §§ 5207-5208 (3d ed. 1943). . . . In contrast, a statute that refers to another statute by specific title or section number in effect cuts and pastes the referenced statute as it existed when the referring statute was enacted, without any subsequent amendments.

Jam, 139 S. Ct. at 769.

MCAG v. CIGNA is in harmony with Jam (and cites it), so it seems likely that other federal courts will also take the view that section 7 authorizes nationwide service of process.

Enforcement of arbitral summonses. MCAG v. CIGNA notes that the FAA requires that an action to enforce an arbitral summons be brought in the district where the arbitrators are sitting, while Rule 45 requires that the action be brought in the district where compliance is sought. However, the Eleventh Circuit said that

this inconsistency is avoided because 9 U.S.C. § 7 simply states that compelling attendance must be done in the same manner provided by law (i.e., filing a motion) and does not incorporate Rule 45 regarding where motions to compel must be filed. As a result, we conclude that the plain meaning of 9 U.S.C. § 7 requires that a motion to compel must be filed in the district in which the arbitrators are sitting.

MCAG v. CIGNA, 939 F.3d at 1159.

Third-party prehearing discovery. The Eleventh Circuit began its discussion of prehearing discovery by noting that because arbitration is a creature of contract and nonparties to an arbitration agreement have not subjected themselves to the authority of an arbitrator, their rights can be affected only as stated in the FAA.

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. See 9 U.S.C. § 7. Thus, the FAA implicitly withholds the power to compel documents from non-parties without summoning the non-party to testify.

MCAG v. CIGNA, 939 F.3d at 1159.

MCAG v. CIGNA is somewhat different from other cases in that the third parties were summoned to appear before the arbitrator but were directed to appear by video conference, presumably for their convenience and to lower costs. The Eleventh Circuit held that the district court abused its discretion in compelling appearance by any means other than physical attendance before the arbitrator. In addition, it found fault with ordering production of documents in this manner as well.

The Eighth Circuit Stands Alone

The view that the power to order prehearing third-party discovery is “implicit” in the FAA has been adopted by a number of district courts but only one court of appeals. In In re Security Life Insurance Co. of America, 228 F.3d 865 (8th Cir. 2000), a reinsurer not a party to an arbitration contested the authority of the arbitration panel to issue a subpoena for prehearing production of documents and testimony. The Eighth Circuit opined:

Although the efficient resolution of disputes through arbitration necessarily entails a limited discovery process, we believe this interest in efficiency is furthered by permitting a party to review and digest relevant documentary evidence prior to the arbitration hearing. We thus hold that implicit in an arbitration panel’s power to subpoena relevant documents for production at a hearing is the power to order the production of relevant documents for review by a party prior to the hearing.

Security Life, 228 F.3d at 870–71.

It may be efficient for third-party documents to be produced prior to an arbitration hearing so the parties can winnow the production down to the most important documents prior to presenting them to the arbitrators. On the other hand, opening the door to significant discovery from third parties can also destroy some of the economies of arbitration. In a larger case, a few depositions can help the parties focus on what is the most important testimony. Prehearing production can also help keep costs down as the parties are often paying a substantial hourly or daily rate to one or three arbitrators. The more focused the presentation, the lower the final bill will be.

The “implicit” view, despite its goal of efficiency, has been widely criticized because it is arguably not in accord with the language of section 7. Like the Eleventh Circuit, the other courts of appeals that have considered the issue have rejected this interpretation, finding the language of section 7 to be plain and unambiguous.

The Majority Favors Strict Construction

In addition to the Eleventh Circuit in MCAG v. CIGNA, another circuit has also weighed in since the changes to Rule 45, but in its brief opinion, CVS Health Corp. v. Vividus, LLC, 878 F.3d 703 (9th Cir. 2017), the Ninth Circuit focused on the plain language of the statute and found that it was unambiguous and that the court’s efforts at interpretation should end there.

MCAG v. CIGNA and CVS Health both draw on the opinion written by then judge Alito for the Third Circuit in Hay Group, Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404 (3d Cir. 2004). Practitioners who are facing the prehearing discovery issues should read this opinion carefully for its thorough analysis, too lengthy for this short article.

The Second Circuit also agrees that the FAA does not authorize arbitrators to compel production of documents from third parties prior to the arbitration hearing. Life Receivables Tr. v. Syndicate at Lloyd’s of London, 549 F.3d 210 (2d Cir. 2008).

Practice tip: Another reason to study Hay Group is then judge Chertoff’s very short concurring opinion in which he offered practical advice on how to secure third-party discovery by having a single arbitrator hold a brief hearing for the production of documents and then adjourning the hearing. As Judge Chertoff noted, the inconvenience of this procedure may prompt a third party to waive its right to appear before an arbitrator. This is, in fact, how these issues are resolved most of the time. If the arbitration panel is convinced that the prehearing discovery sought is important to the case, simply advising a third party that one of the arbitrators will hold a hearing just for the third party generally brings a change in attitude.

The Fourth Circuit Decides to be Different (and Difficult)

The Fourth Circuit in 1999 adopted a unique view, holding that discovery subpoenas to third parties were not enforceable “absent a showing of special need or hardship. . . .” Comsat Corp. v. Nat’l Sci. Found., 190 F.3d 269, 271 (4th Cir. 1999). Unfortunately, the court declined to define what “special need or hardship” means in this context, other than to say that, at a minimum, the evidence must be otherwise unavailable. There is perhaps some help in Deiulemar Compagnia Di Navigazione v. Pacific Eternity S.A., 198 F.3d 473 (4th Cir. 1999), in which the court found “extraordinary circumstances” justifying the district court’s decision to allow discovery in aid of an arbitration not yet filed pursuant to Federal Rule of Civil Procedure 27. The court affirmed the district court’s decision to order the owner of a ship to allow a charter party’s expert to examine the condition of a ship that was under repair and would be leaving U.S. waters in a few days. The owner and charter party were engaged in a dispute as to why the ship had not performed as promised. The ship was supposed to travel at least 12 knots per hour from Australia to the U.S. but could only manage a maximum speed of 7 knots and had to stop in Africa for repairs. The charter party alleged that the engines were defective; the engines were being repaired in Baltimore so the evidence of defect was in danger of being irretrievably lost. This sort of emergency would likely have been a “special need or hardship” if the ship were owned by a third party. Beyond this clue, the Fourth Circuit has not provided further guidance. No published district court opinions in the Fourth Circuit are of assistance either.

Practice tip: In the Fourth Circuit, the one requirement we do know to be essential is that the information must be “unavailable.” That means it must not be in the hands of either party or a public source. The request for a subpoena should, and a petition to compel must, contain a recitation of efforts to obtain the information from other than the third party. In addition, the need for the information must go beyond relevance to any party’s claim or defense. At a minimum, the information will likely need to be integral or even essential to a party’s claim or defense.