Resolving Third-Party Objections to Arbitral Subpoenas Under the Federal Arbitration Act: A Suggested Approach

courtroomBy Peenesh Shah*

I. Introduction

Under Section 7 of the Federal Arbitration Act, arbitrators are empowered to subpoena third parties. When a subpoenaed third party objects, however, courts are enlisted to resolve the objection—and, when appropriate, to enforce the subpoena. Should these courts allow arbitrators to manage such disputes at the outset, considering the objection only after an arbitrator has ruled unfavorably to the objecting party? This approach is not clearly the norm under the FAA, but it is nevertheless appropriate under a fair reading of the FAA and the Federal Rules of Civil Procedure. Moreover, it is advantageous from a policy standpoint.

II. Statutory Framework

Section 7 of the FAA grants arbitrators the power to “summon . . . any person . . . as a witness.”[1] This provision further allows arbitrators to enforce such a summons “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.”[2]

Accordingly, Federal Rule of Civil Procedure 45, which deals with subpoenas in traditional litigation, also governs a Section 7 summons, or arbitral subpoena. Rule 45 protects subpoena recipients by precluding the issuing party from imposing an undue burden.[3] The rule also allows, and sometimes requires, courts to quash subpoenas under certain circumstances.[4] Finally, the Rule specifies that a court must quash a subpoena if it subjects a person to undue burden or requires disclosure of privileged matter.[5]

III. Objections to Third-Party Arbitral Subpoenas: Not “Ripe” Until a Party Seeks Judicial Enforcement

Despite Section 7’s provision allowing enforcement in the “same manner” as litigation subpoenas,[6] arbitral subpoenas operate differently from litigation subpoenas. Importantly, an arbitrator’s subpoena is not self-enforcing,[7] meaning that an objecting non-party recipient need not comply, leaving the requesting party to seek judicial enforcement.[8] The FAA does not require objecting third parties to move to quash,[9] but it is unclear whether they may be allowed to do so.[10] Nothing in the statute expressly requires courts to hear such motions to quash,[11] though perhaps a court must do so because an arbitrator’s subpoena is governed by Rule 45.

Yet, precisely because an arbitrator’s subpoena is not self-enforcing, such a dispute is arguably not “ripe” until the arbitrator seeks to enforce it over the non-party’s objections. Because a federal court may only hear “ripe” disputes,[12] a court should refuse to hear a motion to quash until a party to the arbitration petitions the court to compel compliance.

That is, the arbitrator should hear the objection in the first instance, and if his (non-binding) determination is not to sustain it, he should then move to compel. At that time, a court would make a de novo ruling on the objection. Full judicial review, in a form analogous to interlocutory appeal, allows a court to benefit from the arbitrator’s knowledge of the merits while maintaining protection of third-party rights.

IV. Why Adopt This Approach?

As a general matter, this approach is advisable for some of the same reasons that administrative law often imposes an analogous exhaustion requirement—specifically, promoting judicial efficiency and protecting the authority of the body deciding the merits.[13]

More importantly, the arbitrator is uniquely competent to resolve objections that often raise issues closely related to the merits of the dispute. Two common grounds for challenging a discovery subpoena under Rule 45 are relevance and privilege, both of which require reference to the underlying dispute. In typical litigation, for example, relevance[14] is inextricably related to the pleadings,[15] suggesting that in arbitration, these objections are best resolved by the arbitrator. Similarly, when privilege[16] is invoked in litigation, a court will balance the need for the subpoenaed information against the public interest protected by the privilege.  This balancing inquiry will necessarily reference the merits of a dispute.[17] To be fair, courts may be better positioned, for reasons of consistency and accountability, to properly protect the interests underlying various privilege doctrines; nevertheless, courts would certainly benefit from an arbitrator’s insight into the merits and the evidentiary needs of the dispute.

V. Statutory Authority for The Suggested Approach Under FAA

The FAA does not clearly proscribe the suggested approach. Some trial courts have adopted this approach,[18] while others have heard motions to quash in the first instance.[19] The issue is complicated by the common practice of taking these disputes to court on cross-motions to quash and compel,[20] a practice which suggests a generally held assumption that a court may hear a motion to quash in the first instance.

Of course, the suggested approach requires that arbitral subpoenas not be self-enforcing, which seems statutorily inappropriate in view of Section 7’s provision that, upon petition, a court may punish a person for contempt if the person neglects or refuses to comply with the arbitral subpoena.[21]

However, this provision should be read as allowing a court to punish for contempt only after issuing an order compelling compliance. This reading comports with the framework of Rule 45, which provides certain excuses allowing a person to ignore a subpoena.[22] The rule allows a person commanded to produce documents to reply to a subpoena with a written objection,[23] which excuses obeying the subpoena.[24] Similarly, the rule excuses production of electronically stored information from sources that are not reasonably accessible.[25] A requesting party may respond to these excuses by asking the court to compel compliance,[26] not unlike the FAA’s approach for compelling compliance with arbitral subpoenas.

Thus, Rule 45 establishes a framework where, if the court has the power to compel compliance, punishment for contempt may occur only after exercise of that compulsion power.[27] Reading Section 7 as mimicking this framework—requiring a successful petition to compel before a person may be punished for contempt—makes good sense. Indeed, the Fourth Circuit seems to have adopted this interpretation, holding that the recipient of an arbitral subpoena is under no obligation to challenge the subpoena,[28] implying that the person cannot be punished for contempt if he does nothing.

VI. Current Trends

Despite some earlier decisions in which the court ruled on relevance,[29] the emerging consensus is deference to arbitrators on this question.  The Sixth Circuit has noted the limited nature of a court’s power to disturb an arbitrator’s judgment as to relevance.[30] The Eighth Circuit has stated that second-guessing an arbitration panel’s judgment as to materiality is “antithetical to the well-recognized federal policy favoring arbitration, and compromises the panel’s presumed expertise in the matter at hand.”[31] The Northern District of Georgia has ruled that the determination of materiality to the underlying dispute belongs to the arbitrator.[32]

As discussed above, a court has a greater role to play in resolving privilege objections. Accordingly, even as courts seem willing to defer to arbitrators on relevance, some are more active in their review of questions of privilege.[33] Others, however, have deferred to arbitrators on this point.[34]

VII. Conclusion

The FAA intends to encourage and foster effective arbitration. The proposed scheme serves this goal by broadening the implementation of arbitrators’ power to subpoena third parties. Because the scheme is not contrary to the text of the FAA, its adoption need not wait for legislative action. While the proposed approach has already been accepted in some measure, arbitral outcomes would benefit from further judicial adoption.


*Peenesh Shah is a student at The University of Texas School of Law. He will receive his Juris Doctor degree in May 2010. Thanks to Professor Alan S. Rau for guidance and helpful comments.

[1] 9 U.S.C. § 7 (2006) (emphasis added).

[2] Id.

[3] See Fed. R. Civ. P. 45(c)(1).

[4] See Fed. R. Civ. P. 45(c)(3).

[5] See Fed. R. Civ. P. 45(c)(3)(A)(iii)-(iv).

[6] See 9 U.S.C. § 7 (2006).

[7] See Unif. Arbitration Act § 17 cmt. 8 (2000).

[8] Id.

[9] COMSAT Corp. v. NSF, 190 F.3d 269, 276 (4th Cir. 1999) (“once subpoenaed by an arbitrator the recipient is under no obligation to move to quash the subpoena”).

[10] See infra note 19.

[11] See Odfjell ASA v. Celanese AG, 348 F. Supp. 2d 283, 288 (S.D.N.Y. 2004) (“the FAA nowhere explicitly gives a person subpoenaed to an arbitration the right to move in a federal district court to quash the subpoena”).  But see infra note 19.

[12] See U.S. Const. art. III. For an analysis of the constitutional and prudential dimensions of ripeness, see Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U. Chi. L. Rev. 153 (1987). The arguments presented here, however, are of equal force regardless of whether one views ripeness as a constitutional or prudential matter.

[13] For an excellent discussion of these policy concerns, see McCarthy v. Madigan, 503 U.S. 140, 144-46 (1992) (“The exhaustion doctrine also acknowledges the commonsense notion of dispute resolution that [a decision-maker] ought to have an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court.”).

[14] Though Rule 45 does not discuss relevance as grounds for objection, courts tend to incorporate, either explicitly or implicitly, the Rule 26(b)(1) standard into Rule 45’s undue burden test. See 9 James Wm. Moore et al., Moore’s Federal Practice ¶ 45.03[1] (3d ed. 2009); Fed. R. Civ. P. 26(b)(1); see also Sterling Merch., Inc. v. Nestle, S.A., 2008 U.S. Dist. LEXIS 31938 (D.P.R. Apr. 15, 2008) (applying the Rule 26 relevance standard to a motion to quash, under Rule 45, a subpoena for imposing an undue burden); Syposs v. United States, 181 F.R.D. 224, 226 (W.D.N.Y. 1998) (“The reach of a subpoena issued pursuant to Fed. R. Civ. P. 45 is subject to the general relevancy standard applicable to discovery under Fed. R. Civ. P. 26(b)(1).”); Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 591 (Kan. 2003) (“Fed. R. Civ. P. 45 does not include relevance as an enumerated reason for quashing a subpoena. It is well settled, however, that the scope of discovery under a subpoena is the same as the scope of discovery under Rule 26(b). . .”).

[15] See, e.g., Bariteau v. Krane, 206 F.R.D. 129, 131 (W.D. Ky. 2001) (finding, in traditional litigation, after examining the individual claims in the plaintiff’s complaint, that materials requested by subpoena were relevant), Barkan v. Dunkin’ Donuts, Inc., 2008 U.S. Dist. LEXIS 34608 (D.R.I. Apr. 28, 2008) (quashing a subpoena as overly broad where plaintiff pleaded two theories of damages, but one was disallowed, and the request did not specify which materials were relevant to liability, or which materials were relevant to which damage theory).

[16] Unlike the relevance requirement, the privilege exception is expressly contained in Rule 45. Fed. R. Civ. P. 45(c)(3)(A)(iii). However, it is important to recognize that Rule 26 is also operative – a person seeking to avoid a subpoena on this basis may obtain a protective order under Rule 26(c). See Moore et al., supra note 14, ¶ 45.30. Also, the standards of privilege under Rule 45 and Rule 26 may overlap. See Mannington Mills, Inc. v. Armstrong World Indus., 206 F.R.D. 525, 529 (D. Del. 2002) (“A nonparty moving to quash a subpoena, in essence, is the same as moving for a protective order that such discovery not be allowed.”).

[17] See In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 613-614 (E.D. Va. 2008) (declining to reach the merits of the privilege claim asserted by non-parties in response to a subpoena, because the court in which the action was pending was better positioned to determine whether the information requested by subpoena was privileged as it pertained to claims and defenses associated with that action).

[18] E.g., Fed. Ins. Co. v. Law Offices of Edward T. Joyce, P.C., 2008 U.S. Dist. LEXIS 20713 (N.D. Ill. Mar. 13, 2008) (motion to quash third-party subpoena based on irrelevance, privilege, over-breadth, and timeliness raised issues that should not be decided by a court in the first instance, but rather by arbitrator). Notably, the Supreme Court of California has recently adopted an approach very similar to what this paper suggests, albeit in a case governed by California’s arbitration statute, which uses language somewhat broader than what is found in the FAA. See Berglund v. Arthroscopic & Laser Surgery Center of San Diego, L.P., 187 P.3d 86 (Cal. 2008).

[19] See, e.g., Integrity Ins. Co. v. American Centennial Ins. Co., 885 F. Supp. 69, 71-72 (S.D.N.Y. 1995) (noting that “the court may also consider a petition to quash; there is no requirement that a petition to compel be made first,” citing Commercial Metals Co. v. International Union Marine Corp., 318 F. Supp. 1334 (S.D.N.Y. 1970)), abrogated on other grounds by Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210, 215 (2d Cir. 2008).

[20] See, e.g., Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210, 214 (2d Cir. 2008).

[21] 9 U.S.C. § 7 (2006).

[22] Fed. R. Civ. P. 45(e) (a person may be punished for contempt if he, “having been served, fails without adequate excuse to obey the subpoena”) (emphasis added).

[23] Fed. R. Civ. P. 45(c)(2)(B).

[24] See Moore et al., supra note 14, ¶ 45.41[2][b]; see also Bariteau v. Krane, 206 F.R.D. 129, 131-32 (W.D. Ky. 2001) (noting the prevailing view that timely objection to a subpoena constitutes adequate excuse, and denying motion to hold subpoena subject in contempt, but also issuing order to compel compliance with same subpoena, and advising serving party that he may renew motion for contempt upon noncompliance with said order).

[25] Fed. R. Civ. P. 45(d)(1)(D).

[26] Fed. R. Civ. P. 45(c)(2)(B)(i), 45(d)(1)(D).

[27] Indeed, there is some authority, though not a consensus, that an order compelling compliance is a general prerequisite to an order punishing for contempt. See Moore et al., supra note 14, ¶ 45.62[3].

[28] See COMSAT Corp. v. NSF, 190 F.3d 269, 276 (4th Cir. 1999).

[29] See Oceanic Transport Corp. v. Alcoa S.S. Co., 129 F. Supp. 160, 161 (D.N.Y. 1954) (vacating subpoena served on third party witness in arbitration proceeding, noting that “it is a fact that when the statute imposed upon the District Court the duty to determine whether or not to compel the attendance of a witness and his production of papers, it imposed upon the Court the duty to determine whether or not the proposed evidence is material.”); see also Reuters Ltd. v. Dow Jones Telerate, 231 A.D.2d 337, 344-45 (N.Y. App. Div. 1st Dep’t 1997) (reversing, under New York state law, lower court’s granting of a motion to compel an arbitral subpoena on a non-party because requested materials were relevant to the theory raised in the arbitration).

[30] American Fed’n of TV & Radio Artists v. WJBK-TV, 164 F.3d 1004, 1010 (6th Cir. 1999) (finding error where the district court had refused to enforce a subpoena against a third party because the requested material was irrelevant); see also Meadows Indem. Co. v. Nutmeg Ins. Co., 157 F.R.D. 42, 44 (M.D. Tenn. 1993) (refusing to second guess an arbitration panel’s determination as to relevance when denying non-party’s motion for protective order filed in response to an arbitration panel’s subpoena).

[31] Sec. Life Ins. Co. of Am. v. Duncanson & Holt (in Re Sec. Life Ins. Co. of Am.), 228 F.3d 865, 871 (8th Cir. 2000) (affirming an order enforcing a subpoena issued by an arbitration panel, ruling that whether or not the subject was determined to be a party to the arbitration was irrelevant).

[32] Festus & Helen Stacy Found., Inc. v. Merrill Lynch, Pierce Fenner, & Smith Inc., 432 F. Supp. 2d 1375, 1380 (N.D. Ga. 2006) (referencing Sixth and Eighth Circuit opinions in a ruling compelling two non-party objectors to comply with subpoenas issued in arbitration).

[33] See Festus & Helen Stacy Found., Inc. v. Merrill Lynch, Pierce Fenner, & Smith Inc., 432 F. Supp. 2d 1375, 1380 (N.D. Ga. 2006) (directing relevance objections to arbitrator, but issuing a finding, after reviewing the provided motions and briefs, that the confidentiality concerns were not sufficiently compelling to excuse non-party from compliance with subpoena); Integrity Ins. Co. v. American Centennial Ins. Co., 885 F. Supp. 69, 73 (S.D.N.Y. 1995) (ruling on non-party’s privilege objection because the issue would “doubtless resurface at the arbitration hearing”; held, privilege did not protect requested information), abrogated on other grounds by Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210, 215 (2d Cir. 2008).

[34] See Odfjell ASA v. Celanese AG, 348 F. Supp. 2d 283, 288 (S.D.N.Y. 2004) (non-party objections on the grounds of privilege “should first be heard and determined by the arbitration panel before whom the subpoena is returnable, and hence, even assuming arguendo that this Court has jurisdiction to consider the motion to quash, the motion must be dismissed at this stage as unripe”); Odfjell ASA v. Celanese AG, 2005 U.S. Dist. LEXIS 729 (S.D.N.Y. Jan. 15, 2005) (same non-party in same underlying case sought to obtain confidentiality order broader than that which was granted by arbitration panel, but the court refused to “disturb the decision of the arbitration panel not to issue a protective order . . . . The panel’s decision is entitled to considerable deference, given the panel’s hands-on familiarity with the case and with the confidentiality issues here presented.”); Odfjell ASA v. Celanese AG, 380 F. Supp. 2d 297, 298 (S.D.N.Y. 2005) (same non-party, same underlying case, but here, the court determined that the arbitration panel had abused its discretion in not allowing non-party to present certain evidence supporting a claim of privilege; rather than ruling on the issue itself, however, the court remanded the issue to the arbitration panel to have the excluded evidence heard).


Originally published to HNLR Online on Mar. 25, 2010.

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