Most practitioners, and even arbitrators, assume arbitrators have the inherent power to issue third-party discovery subpoenas to obtain document discovery in domestic arbitrations. But do they? The answer may surprise you. Like many lawyer answers, the answer is, “it depends.” It depends on your jurisdiction, the applicable arbitral code, and the parties’ arbitration agreement. This July 2020, California aligned itself with the Ninth Circuit and the growing number of other state and circuit courts holding that the Federal Arbitration Act (FAA) and state analogs do not empower arbitrators to issue third-party discovery subpoenas in domestic arbitrations.i
The FAA Subpoena Power
The FAA empowers arbitrators to “summon in writing any person to attend before 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.”ii The statute thus contemplates arbitrator power to issue a subpoena for third party attendance at the merits hearing and to compel the third-party production of documents at that hearing. The courts have grappled with the question of whether this power also includes the authority to subpoena third parties and their documents before the hearing. The courts have examined this question of compelled third-party discovery in arbitration, and they are split.