Why Camp David II Failed: a Negotiation Theory Perspective

Rochelle-Leigh (Shelley) Rosenberg


“I don’t think they will ever reinvent the wheel. And the difference between this moment until the moment of reaching an agreement will be how many names–Palestinians and Israelis–will be added to the lists of death and agony. At the end of the day, there will be peace.”–Saeb Erekat


On July 24, 2000, after fourteen straight days of negotiations at the Camp David II presidential retreat, President Bill Clinton, Israeli Prime Minister Ehud Barak, and Palestinian Authority (PA) Chairman Yasir Arafat returned to their respective countries unable to reach a deal. Despite the summit’s failure to produce a final settlement of the Israeli-Palestinian conflict in accordance with the 1993 Oslo Agreements, Arafat requested another meeting. Nearly five months later, the parties reconvened at the White House on December 19, 2000, and following separate meetings with both parties, Clinton offered his last proposal. Barak, who had wagered his political career on the potential deal, endorsed it. Arafat made no counteroffer and gave no explanation. Instead, he simply walked away.

Arafat’s exit shocked the world: “Arafat’s decision to walk away from these offers, effectively ending the Oslo peace process and inflaming the burgeoning second intifada . . . stunned the U.S. and Israeli leaders.”[1] Shortly after, in his New York Times column “Foreign Affairs; Yasir Arafat’s Moment,” Thomas Friedman explained to the American public that Arafat “played rope-a-dope. He came with no compromise ideas of his own on Jerusalem. He simply absorbed Mr. Barak’s proposals and repeated Palestinian mantras about recovering all of East Jerusalem.”[2] Even Arab leaders admitted that they were caught off guard when Arafat cut off negotiations.[3] In his autobiography, My Life, Clinton reflected on an exchange he had with Arafat upon his abrupt departure. “You are a great man,” Arafat told Clinton after Camp David II. Clinton responded, “I am not a great man. I am a failure, and you have made me one.”[4]

This paper examines the failure of Camp David II from a negotiation perspective. For the purposes of this paper, Barak and Arafat represent the nations of Israel and Palestine, theoretically unified entities. It should also be noted that due to the complexity of the Israeli-Palestinian conflict, this paper takes a simplistic view of the hypothetical unified parties’ primary interests at a single point in time. It begins with a sketch of each party’s primary interest. It then evaluates why the Clinton proposal did not offer a Zone of Possible Agreement (ZOPA).[5] The paper concludes with suggestions for use in future negotiations between the Israelis and Palestinians in the hope that one day a “final settlement” will be reached.


[1] Russell Korobkin & Jonathan Zasloff, Roadblocks to the Roadmap: A Negotiation Theory Perspective on the Israeli-Palestinian Conflict After Yasser Arafat,30 Yale J. Int’l L. 1, 24 (2005).

[2]Thomas L. Friedman, Foreign Affairs; Yasir Arafat’s moment, N.Y. Times, July 28, 2000, www.nytimes. com/2000/07/28/opinion/foreign-affairs-yasir-arafat-s-moment.html?pagewanted=all&src=pm.

[3]Elsa Walsh, The Prince: How the Saudi Ambassador Became Washington’s Indispensable Operator, New Yorker, Mar. 24, 2003, at 48.

[4] Bill Clinton, My Life 633 (Knopf Publishing Group, 2004).

[5] Robert H. Mnookin, Scott R. Peppet, & Andrew S. Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes 19 (Library of Congress-Cataloging-in-Publication-Data, 2000).

This week in ADR: January 29-February 5

It’s hard to believe that we’re already into February 2012.  But, as Colum McCann would say, the great world spins on, and with it comes ADR news.

  • Over at the New York Times, Gretchen Morgenson opines on why a $1.38 million arbitration award still didn’t satisfy one bitter investor.
  • Any of us who haven’t blocked middle school out of our memories entirely will recall that conflicts during those years can be just as contentious as any on Wall Street.  Luckily, peer mediation programs can offer hope.
  • Mediation also showed up halfway across the world, as peacemaking teams attempt to rid Yemeni towns of Al-Qaeda militants.
  • One ex-CIA spy is not optimistic that negotiation will result in a deal with Iran over nuclear weapons.
  • For the brave physicians of Doctors Without Borders, however, negotiation sometimes provides their only chance of carrying out their important work in conflict zones.
  • But on a lighter note, perhaps we all can take a few tips from the persuasive genius of Liz Lemon.
See you next week!

This week in ADR: January 8-January 15

  • ADR and college football:  In the course of its struggle to free itself from the Big East conference, West Virginia University finds itself ordered to engage in non-binding mediation with conference reps.
  • Same ADR process, very different context:  The Department of Justice hopes that mediation can serve as a foreclosure intervention.
  • Worlds collide:  The 9th Circuit tries to sort out the complicated jurisprudence on the reach of the Federal Arbitration Act.
  • Across the globe, a journalist reflects on over 30 years of negotiations in the Middle East, and makes a pitch for Saudi Arabia to join the table.
  • Finally, a new study finds that some surprisingly simple instructions can affect women’s success in negotiations.

Is Voting for Santorum Below a Voter’s Reservation Value?

An able negotiator knows that a crucial step in entering any negotiation is understanding when to break off negotiations i.e., knowing your BATNA (Best Alternative To a Negotiated Agreement). To discover your BATNA, you must first determine your reservation value. Your reservation value is the lowest value at which you would consider the negotiation worthwhile. Once you have determined your reservation value you must  establish all possible alternatives to the negotiation. Finally, at any point during the negotiation, you can compare your reservation value to your possible alternatives and readily determine your best alternative, or your BATNA.

These are among the basic principles of negotiation, but they are not limited to negotiation. These are principles that can be applied to most decisions we face, from important, to less important decisions.

We are currently in the midst of an exciting contest for the Republican nomination for the Presidential Candidate to face off against incumbent President, Barrack Obama. Recently, voters in Iowa came out strongly in favor of Mitt Romney and Rick Santorum. I would like to explore why people voted for Santorum, and was it really better than their BATNA, using the principles laid above.

The first question is why cast a vote at a primary/caucus. I suppose that people vote because they want to participate in choosing the candidate who will represent their party in the general election and ultimately, serve as President. The second question is why vote for a specific candidate. This is a more difficult question because there is broad range of possibilities. Voters may believe that the candidate’s beliefs and opinions are most closely aligned with the voters’ own beliefs and opinions and because they would prefer a kindred spirit running the country, they will vote for that candidate. Other voters may not have strong feelings about the hot topic issues and instead looks for leadership qualities befitting a Head of State. Hopefully, most voters recognize that these considerations should not be considered in a vacuum, because a candidates opinions and leadership qualities, are both vitally important.

Following the principles of negotiation, I will attempt to demonstrate why voting for Santorum is  indefensible.  In this illustration, voting will take the place of sitting at the negotiating table. A voter must know his/her BATNA and so must first determine his/her reservation value. In voting in a primary, one could argue that there is no reservation value for voting, because there is no possible negative outcome for voting for the candidate of the voter’s choosing, in the way that remaining at the negotiating table can lead to agreeing to a deal detrimental to negotiator. Thus, there is no need to discover other alternatives or even the best alternative, because there is simply no point at which the voter will not vote (this discussion is not factoring in the de minimis costs of casting a vote such as time).

However, this analysis is fundamentally incorrect. There is a possible negative outcome for a voter who votes for an unelectable candidate such as Rick Santorum (of course if a republican voter’s second choice after Santorum is Obama, then the following discussion does not apply, but I do not believe that such a voter exists). A voter’s reservation value should include an analysis of the unelectability of the candidate. The voter must factor in the importance having a candidate from his/her own party win the election. Thus, the reservation value for voting for a specific candidate, must at the very least be the point at which a candidate will have a chance at winning the general election. Voting for an unelectable candidate is not only a waste of time and utility, but  also should be understood to be outside a voter’s ZOPA, or Zone Of Possible Agreement, and thus below the voter’s reservation value, and the voter’s BATNA would either be not voting, or voting for the most tolerable electable candidate.

Voting for Santorum in the hope that he will represent the Republican Party in the upcoming presidential election against Obama should be recognized as below any Republican voter’s reservation value of having a Republican in office. His stances on banning contraception gay marriage may have support from the far right, but will alienate the all important moderate republicans and independents and render him utterly unelectable. Voting for Santorum is akin to voting for Obama.


International Weapons Negotiation

Photo credit: MTSU
Photo credit: MTSU

Hello Dedicated Readers,

In case somehow you have not heard the news, I will inform you of the recent events in Geneva.

In brief, States from across the globe gathered in Geneva to negotiate a multi-lateral international agreement regarding Cluster Munitions. The basic mechanism of Cluster Munitions is that a large bomb containing many smaller munitions is dropped or launched on an area. These smaller munitions spread out over a large area and are intended to explode on impact. One of the problem presented by Cluster Munitions is that too often, these smaller munitions do not explode on impact and remain in place for years. They are hidden killers, picked up by children mistaking them for toys, stepped on by unsuspecting farmers. To prevent further civilian killings States attempted to add a Protocol to the Convention of Conventional Weapons (CCW) to regulate Cluster Munitions.

For further background information, this agreement was negotiated in the backdrop of the already existing Convention on Cluster Munitions (CCM), which absolutely bans the use of Cluster Munitions, but is not signed by the major user states. Many states feared that a weak agreement in the CCW would undermine the gains realized by the CCM. In the end the CCW proposal failed to gain the necessary consensus and died there.

For a more detailed analysis on these exciting events by actual participants and fellow HLS students, here is a blog post written by Anna Crowe and Nicolette Boehland for the HRP blog found here http://harvardhumanrights.wordpress.com/2011/11/23/dispatch-from-geneva/

Diplomats from more than 100 countries are currently engaged in heated deliberations in Geneva over a proposed protocol, put forward by the United States and others, that would allow the use of certain cluster munitions indefinitely.  The International Human Rights Clinic has joined a group of nongovernmental organizations in arguing against the proposal, which would threaten the impact of an existing international treaty that protects civilians by absolutely banning the weapons.

If adopted, the proposed protocol would directly compete with the Convention on Cluster Munitions, a treaty that seeks to eliminate the devastating effects of cluster munitions on civilians.  More than 108 countries have signed on to that convention, which went into force August 2010, and 66 states are full parties, bound by all its provisions.  The convention prohibits use, production, transfer, and stockpiling of cluster munitions and obliges states to provide assistance to victims of past use.

The United States, which is not a party to the Convention on Cluster Munitions, has led the charge for the new protocol over the last week at the Review Conference of the Convention for Conventional Weapons (CCW) in Geneva.  The protocol would be attached to the CCW framework convention, an umbrella treaty with protocols governing specific types of weapons.  Protocol supporters argue that certain major stockpilers and users of cluster munitions who are not currently party to the Convention on Cluster Munitions might join this proposed protocol because it is not a complete ban.

But the Clinic argued in a paper distributed to delegates last week that the new protocol would constitute an unprecedented step backwards in terms of international humanitarian law.  The international community has never adopted a treaty that provides weaker protections for civilians from armed conflict than a treaty already in force.

Furthermore, adoption of the proposed protocol would water down the stigmatization of cluster munitions by permitting future use.  Though the proposed protocol would ban cluster munitions produced prior to 1980, it would allow states to continue to use some other models of cluster munitions for 12 years and some forever.  The proposed treaty also contains weak and inadequate provisions regarding stockpiling destruction and victim assistance.

The Clinic strongly believes that, much like antipersonnel landmines, cluster munitions cause an unacceptable level of harm to civilians.  Because they release dozens or hundreds of explosive submunitions across a large area, civilian casualties are virtually guaranteed when cluster munitions are used in populated areas, as they often have been.  In addition, the submunitions frequently fail to explode on impact, leaving explosive remnants that can kill and injure civilians months or years after a conflict has ended.

A team from the Clinic traveled to Geneva this week as part of the Human Rights Watch (HRW) delegation.  The Clinic has a longstanding partnership with HRW on weapons issues; Senior Clinical Instructor Bonnie Docherty is also a senior researcher in HRW’s Arms Division.  We, along with Robert Yoskowitz, JD ’13, are working under her supervision at the CCW conference this week.

During the conference, we have provided real-time legal analysis of each new draft protocol text.  We have also written articles for the regular CCW Newsproduced by the Cluster Munitions Coalition (CMC), a coalition of NGOs, including HRW, that campaigns to ban cluster munitions and that helped create the CCM.  The Coalition is lobbying hard this week to prevent the proposed protocol from moving forward.

In order for the CCW conference to adopt a new protocol on cluster munitions, there must be consensus—and there is clearly no consensus yet.  There are still two days of negotiations left, however.  The atmosphere is tense, but hopes are high for a good outcome.

Nicolette Boehland, JD ’13, and Anna Crowe, LLM ’12, are members of the Clinic’s Cluster Munitions team.

Bridging Cultural and Technological Divides: The Role of Culture in Email Negotiations Between American and Chinese Negotiators

By Matthew Parker, a 3L law student at Harvard Law School

I. Introduction: The Role of Culture in Email Negotiations

Culture fundamentally affects email negotiations. In an increasingly globalized world where cross-border negotiations have increased substantially[1] and the use of email communication has grown exponentially,[2] surprisingly little research, however, has been conducted on culture’s role in email negotiations. Culture supplies the building blocks for interpreting and structuring social interactions like negotiations,[3] and email can fundamentally change how these social interactions are played out.[4] In this article, I bridge the gap in current negotiation research between culture and email to argue that culture is an important factor in email negotiations that influences negotiation behaviors and outcomes. Taking a case study approach by examining literature on cross-cultural negotiations between American and Chinese negotiators, I contend that different cultural influences affect the behavior of negotiators from the United States and China when they negotiate together using email.

I begin this article by reviewing some of the existing literature on the effects of culture on negotiation before turning to an examination of the way that email changes the negotiation dynamic. Combining research on email negotiations with literature on the role of culture in the negotiation process, I show that culture affects email negotiations. I then conclude by summarizing my findings and suggesting avenues for further research into the dynamic interplay between culture, email and negotiation.

II. Culture and Negotiation: A Review of the Impact of Culture on American and Chinese Negotiators

The way people understand and act during a negotiation reflects fundamental cultural assumptions varying along numerous cultural dimensions that are explored in this section of the paper.[5] While it is certainly true that there is substantial variation in negotiation behaviors, norms, values and beliefs within a culture, there is a greater and sometimes even dramatic variation between cultures.[6] The most significant cultural differences among American and Chinese negotiators occur along the individualism-collectivism, high-low power distance and high-low context dimensions.[7] Each of these differences warrants further discussion because they have a significant impact on the way American and Chinese negotiators negotiate.

  1. a.     The Individualism-Collectivism Dimension

American culture is often characterized as individualist whereas Chinese culture is seen as more collectivist.[8] In countries with highly individualist cultures like the United States, people are more likely to consider themselves as independent of the social group and thus more free to focus on personal goals.[9] As a result, American negotiators generally rely more on analytical-rational thinking styles that focus on the problem, and use tactics such as argumentation based on logic and the presentation of facts.[10] In contrast, negotiators from countries with more collectivist cultures like China rely more on intuitive-experiential thinking styles and use tactics that appeal to emotions, social obligations, and the desire to maintain harmony and save face.[11] Consequently, Chinese negotiators are more likely to think about negotiation in terms of relationships whereas American negotiators are generally more focused on outcome.[12]

New research, however, suggests that these characterizations about individualist and collectivist negotiation styles may be too simplistic and that collectivists may actually act more aggressively to out-group members (i.e. people who are not a part of their collective).[13] Researchers posit that when negotiating with strangers outside their culture, negotiators from collectivist cultures may no longer feel constrained by a concern for others and are thus more likely to reveal their egotistical sides.[14] It is thus clear that the individualism-collectivism dimension affects how negotiators negotiate, suggesting for our purposes that this cultural dimension has implications for American-Chinese email negotiations.


[1] See Wendi Adair et al., Culture and Negotiation Strategy, Negot. J. 87, 87 (2004).

[2] See Janice Nadler & Donna Shestowsky, Negotiation, Information Technology, and the Problem of the Faceless Other, in Negotiation Theory and Research 145, 145 (Leigh Thompson ed., 2006).

[3] Jeanne Brett & Michael Gelfand, A Cultural Analysis of the Underlying Assumptions of Negotiation Theory, in Frontiers of Social Psychology: Negotiations 173, 175 (Leigh Thompson ed. 2005).

[4] See, e.g., Nadler & Shestowsky, supra note 2, at 145; Ashleigh Rosette et al., When Cultures Clash Electronically: The Impact of Email and Culture on Negotiation Behavior 3 (Disp. Resol. Res. Ctr., Nw. U., Working Paper No. 302, 2004); Michael Morris et al., Schmooze or Lose: Social Friction and Lubrication in E-Mail Negotiations 6 Group Dynamics: Theory, Res., and Prac. 89 (2002).

[5] Brett & Gelfand, supra note 3, at 175.

[6] Jeanne Brett et al., Culture and Joint Gains in Negotiation, 14 Negot. J. 61, 79 (1998).

[7] Wendy Adair & Jeanne Brett, Culture and Negotiation Process, in The Handbook of Negotiation and Culture 158, 161 (Michele Gelfand & Jeanne Brett eds., 2004); E. Alan Buttery & T.K.P. Leung, The Difference Between Chinese and Western Negotiations, 32 Eur. J. Market. 374, 375-77 (1998).

[8] Brett et al., supra note 6, at 65-67.

[9] Adair & Brett, supra note 3, at 160.

[10] Gregory Kersten et al., The Effects of Culture in Anonymous Negotiations: Experiment in Four Countries, in Proceedings of the 35th Hawaii International Conference on Systems Science 418, 421 (2002).

[11] Gelfand & Dyer, A Cultural Perspective on Negotiation: Progress, Pitfalls, and Prospects, 49 App. Psychol.: Int’l Rev. 62, 81 (2000); Adair & Brett, supra note 7, at 159-60.

[12] See Adair & Brett, supra note 7, at 160-61.

[13] Xiao-Ping Chen & Shu Li, Cross-National Differences in Cooperative Decision-Making in Mixed-Motive Business Contexts: The Mediating Effect of Vertical and Horizontal Individualism, 36 J. Int’l Bus. Stud. 622, 624 (2005); at 624; Rosette et al., supra note 4, at 8.

[14] Chen & Li, supra note 13, at 624 (discussing a series of studies conducted by researcher Toshio Yamagishi).

Click here to download the full article (PDF)

Negotiation Advice for the 112th Congress

by Robert C. Bordone and Tobias Berkman*

There will be many post-mortems in the wake of the historic changes brought about by the 2010 mid-term elections.  But no matter where you stand in American politics, it’s hard to disagree with Senator-Elect Rand Paul’s declaration Tuesday night that, “The American people are unhappy with what’s going on in Washington.”  It’s clear that the American people want Congress and the President to do something. Given the dire state of the economy, persisting unemployment, and ominous long-term deficit forecasts, inaction is a guarantee of stronger anti-incumbent sentiment in 2012.

With a divided government and the election of many legislators on platforms of “no compromise,” is there any hope that the next Congress will accomplish anything meaningful to address the multitude of challenges facing the nation?

We think there is.

We have devoted our professional lives to helping parties that are seemingly stuck in intractable, zero-sum conflict.  By expanding time horizons, encouraging parties to think more deeply about their interests, putting issues that the parties initially overlooked on the table, and working to improve communication and build trust, we can often uncover mutual gains that break the impasse.  Sometimes, we can even repair relationships and transform conflicts.

The atmosphere in today’s Washington feels far removed from any such rapprochement.  Nevertheless, neither party will be able to pursue a positive agenda over the next two years without the cooperation of the other.  As a result, this election presents an opportunity for members of Congress to change how they work with legislators from across the aisle.  To help them in this endeavor, we offer five basic pieces of negotiation advice for the 112th Congress:

  1. Identify win-win issues to make strategic trades. Even if voters want their representatives to fight on certain points, there are a host of other issues in which political divisions are less salient and the parties have a shared interest in progress, such as education reform, trade, national security, and long-term deficit reduction.  There are other sets of issues where one party might care a lot and the other party might be largely indifferent, such as tax cuts for clean energy companies and increased spending on infrastructure.  By trading on such issues, both parties gain.
  2. Look beyond the 24/7 news cycle.  The media’s appetite for sound bites and scandal is often insatiable.  Nonetheless, legislators have a higher purpose than showboating for the media.  Winning in 2012 or 2016 matters, but for most members of Congress, so too does the possibility of earning a reputation as a great legislator by 2025.  Our country’s most renowned legislators, people like Ted Kennedy and Richard Lugar, have also been consummate dealmakers.  Over the long term, achieving such renown requires reaching across the aisle and forging strong relationships with one’s ideological foes.
  3. Seek out low-risk venues for honest, open communication.  Contentious negotiations rarely succeed if they are held in public because the parties cannot explore sensitive trades without upsetting their constituencies.  Legislators should foster private, back-channel methods of communication that allow them to engage with the other side, not the TV cameras.  The challenge of fostering such methods has increased enormously in the age of C-SPAN and cable news.  It is nonetheless vital.
  4. Sequence issues strategically to build trust. Complex, multi-stage negotiations are most successful when the parties build trust and momentum through early wins.  When parties cooperate on small issues early in a negotiation to generate positive momentum and tangible gains, they are less likely to defect later when the issues become more challenging.  Leaders from both political parties should work together to set a legislative agenda that increases the likelihood of early victories.
  5. Engage genuine differences with vigor and principle. We are not naïve.  On at least some issues, such as tax cuts for the wealthy and healthcare, voters want their legislators to fight, not compromise.  On these issues, a spirited battle should ensue.  Keeping these differences from spilling over and poisoning progress in other domains, however, is a hallmark of a truly great negotiator.

Some believe that it is not possible for members of Congress to heed this advice in today’s political climate.  We think otherwise, and have direct evidence to inspire our hope.  In July, we worked with high-level Washington political officials, both Republicans and Democrats, to train them in creative problem solving.  Across the political spectrum, these officials demonstrated an ability to disagree with passion but also to identify shared interests and goals, to listen to each other, and to work together effectively.

There remain reasonable officials in Washington and we attribute good faith to the new members who will soon arrive in the nation’s capital.  With the right approach and incentives, the next Congress might actually accomplish something meaningful over the next two years.

*Robert C. Bordone is the Thaddeus R. Beal Clinical Professor of Law at Harvard Law School and Director of the Harvard Negotiation and Mediation Clinical Program.  Tobias Berkman is an Associate at the Harvard Negotiation and Mediation Clinical Program.

Thoughts prompted by Mnookin’s Bargaining with the Devil*

Leo F. Smyth**

Bargaining with the Devil, to Robert Mnookin, means negotiating with someone who has intentionally done harm and may well do so in the future: “an adversary whose behavior [one] may even see as evil.” 1  Should one negotiate with such a person or such a regime?  Surprisingly, in this book, the Chair of Harvard’s Program on Negotiation argues that there are circumstances in which the wise decision is to fight the harm-doer rather than negotiate.  But that decision, if it is truly wise, can be made only after a rigorous analysis of the situation.  In this book Mnookin sets out a framework to help in that analysis and illustrates it by reference to eight case histories.  The question posed by the book’s sub-title is stark: when to negotiate, when to fight?

First, I recommend you read this book for enjoyment.  So skilfully does the author craft his case histories from the bedrock of research that the book is that rare thing among works of scholarship: a page-turner.  Second, I recommend you read the book with a pen and paper by your side: there are profound questions here that will give you pause, prompt links to other literatures, and reinforce or challenge your habitual ways of thinking.

Essentially, Mnookin’s framework is a challenge to the negotiator to answer five questions that will make his or her bounded rationality less bounded. 2  Drawing on psychology to show the traps that await our thinking, such as demonization, dehumanisation of the enemy and the blood-rushing call to battle, he makes a convincing case that dealing with a harm-doer puts us all in the domain of bounded rationality. 3  There are other voices too: the call to peace, to an acceptance of shared fault and responsibility, to redemption.  Those voices also need reflection, not reflex action.  Does negotiating with harm-doers reward their behavior and make it likely to recur?  Or will the transformative power of negotiation change the harm-doer’s thinking and moral stance?  These are questions that go to the heart of the human condition.  They are the stuff of theatre and art and philosophy.  Mnookin brings them home to us in the richness of his case histories.  The questions in his framework will be familiar to those who have followed interest-based bargaining over the years – the focus on interests, alternatives, potential outcomes, costs, and prospects for implementation.  Here, they are applied where the stakes are very high: war and peace, injustice and betrayal.  In the political sphere, two of his protagonists are in jail as they make their decision to negotiate or not; two more are in the middle of World War II.  The non-political cases include a family feud, a bitter labor dispute, a business conflict bedevilled by perceived broken promises and, finally, the egocentric quicksands of divorce.

Like all case studies, the lessons learned depend on the prism through which they are understood.  Mnookin nails his colors to the mast in the following key passage: “…you can’t rely on hindsight to know whether you’re making a wise decision.  A wise decision can turn out badly; it happens all the time.  And a stupid decision can have a good outcome; you can be lucky.  So the test of wisdom cannot be whether you’re proven right in the end.  The test is, Did you think it through?” (emphasis in original). 4  This makes sense since unless one adopts a position of ‘always negotiate’ then the decision to fight needs as sound a basis as possible.

As the case histories unfold, one comes to realize just how difficult it is to apply Mnookin’s test in practice.  The story of Anatoli Sharansky, refusing the slightest cooperation with his KGB captors over thirteen years, is remarkable for the way Mnookin teases out Sharansky’s mental processes. 5  Under enormous pressure to negotiate, Sharansky maintained a sense of the inviolability of his personhood and used all the psychological traps – either-or, win-lose, demonization – to support it.  Thoughts, feelings, analysis, all had to be co-opted and rationalized in the service of intransigence.  In human terms it is not hard to see why.  A prisoner in a cell, facing death threats alternated with promises of eventual freedom, subject to ongoing attempts at brain-washing from a cell-mate almost certainly a KGB collaborator, may well feel the need to shut his mind to any data that threatens his resolve.  In the end Mnookin comes to the conclusion that his decision was wise.  I’m not so sure.  Heroic, steadfast, awesome in its courage, yes, but the price of it seemed to be a shutting down of the critical faculty, that very ‘thinking through’ that is Mnookin’s test.  I accept that some decisions have their origin in an intuition beyond logic, but, to my mind, wisdom requires that they be critically evaluated.  In looking at such decisions I tend to think in terms of dissonance: if a protagonist gives a categorical “no” to negotiation, what, I wonder, would be the costs of a “yes” decision on their mental model of the situation.  Will those of us who have not been in Sharansky’s position ever know?

Reading the case histories, readers will bring their own perspectives and conceptual preferences to bear in deciding whether the protagonists passed Mnookin’s test of ‘thinking through’.  They will have a hard time with the case of Rudolph Kasztner, Mnookin’s next case. 6  The hapless Kasztner, it seems to me, was at the opposite extreme from Sharansky – he was not free not to negotiate.  Why?  Because the structure of his predicament was such that he could try to save some Jewish lives in Nazi-occupied Hungary or try to save none.  In discussing the case Mnookin refers to Styron’s Sophie’s Choice 7 where Sophie is given the choice of saving one of her children from death or sacrificing both.

It is clear from Mnookin’s account that Kasztner had a long history as a negotiating fixer and presumably this was part of his habitual way of defining himself.  The cost in dissonance terms of not negotiating would probably have been huge; together with the compulsive quality of the situation, I suggest it was impossible.  It mattered little how implausibly bizarre Eichmann’s demands became; negotiation was still the only game in town, an increasingly forlorn hope – but still a hope – of saving some lives.  Mnookin’s account of the twists and turns of the negotiation is masterful. He reminds us that it is unfair to judge based upon outcomes and knowledge gained after the event; Kasztner had to deal with uncertainty, personal threats and lying opponents.  To be sure, questions could be asked about how much of Kasztner’s knowledge of the situation he chose to share with others; but it is hard to believe that refusing to negotiate would have materially affected anyone’s prospects for survival.  Mnookin’s conclusion that it was not Kasztner but the Nazi regime that bore responsibility for the slaughter seems fair to me.

It is almost with a sense of relief that one turns to Churchill and Mandela. 8  In these cases, not only does Mnookin’s framework come into its own, but those of us who believe in the possibility of reaching wise decisions in the midst of turmoil may find some consolation here.  Again, there is a question of past decisions, personal identity and the dissonance of going against the momentum they create.  Churchill had long seen Hitler as evil and untrustworthy, just as he had a personal identity as leader and defender of the nation.  In addition, he disliked indecision, once saying that he never worried about action, only about inaction.  Consequently, thinking through may have had a high emotional cost for him since it implied delaying a decision.  One suspects Churchill understood very well Hamlet’s observation that ‘…the native hue of resolution is sicklied o’er with the pale cast of thought’. 9  By temperament, Churchill was drawn to the native hue end of the business.  Nonetheless, when pushed, he appears from Mnookin’s account to have passed the test – he thought through the decision whether to negotiate or fight and decided to fight.

It is no surprise that the case of Nelson Mandela is altogether extraordinary.  My very first trip to the United States was to New Hampshire and I was struck by the words on the car licence plates: Live Free or Die.  Those words could easily have been a guiding slogan for Mandela.  Win-lose, either-or, no compromise.  From such a starting point, the very idea of negotiation looks like a betrayal.  And indeed, that was his starting point; but for him the momentum of past perceptions was not a predictor of his decision.  Part of Mandela’s genius was looking to the future, envisioning it and holding that vision no matter how awful, how dangerous, the present circumstances.  Thinking through for him was natural – he once complained that he had more time to think about the future of South Africa when he was in jail than when he was President – but there was little chance of his getting stuck in a Hamlet-like paralysis by analysis.  From his jail cell he moved decisively to initiate negotiations.  The risks were enormous; from the suspicions of his own constituency, to the possibilities of civil war, a military coup or partition of the country.  Only a person of outstanding willpower could have withstood the pressures; only a person of outstanding  personality strength could have brought others with him. Mnookin makes no secret of his admiration, nor do I.

But the Mandela case illustrates another aspect of the ‘negotiate/fight’ decision that I would have liked Mnookin to address more fully.  On the outskirts of Johannesburg there is an apartheid museum.  Even a casual visit there takes three hours in order to grasp the full range of legal instruments, paramilitary force and restriction of freedom  brought together to deny the rights of the majority of the population.  Even with the knowledge that the regime eventually ended, a visit there is a sobering experience.  Like Mnookin, I believe in the transformative power of negotiation. There are examples in his IBM-Fujitsu case 10 where parties that started out with totally unreconstructed win-lose attitudes eventually came to a creative search for solutions, albeit in the shadow of arbitral power.  But there exist parties for whom there is no arbitration or independent court, who dwell in conditions of structural violence; for them, fighting may be essential just to earn the right to a place at the table.  Mandela was no pacifist: he had, when no change was possible, advocated violence against the apartheid regime.  In the early pages of the book, 11 Mnookin investigates the wisdom of President Bush’s decision to invade Afghanistan rather than negotiate with the Taliban.  Guided by a series of questions, he reviews the evidence and the thinking through, concluding that fighting was the correct decision.  Fine. But we must allow a similar rationality to the dispossessed, accepting that they too may conclude fighting is the correct decision.

Clearly, this line of reasoning is fraught with danger.  Many governmental and nongovernmental groups may claim to have thought things through and now feel authorized to practise violence.  In outlining his framework Mnookin discusses the possibility of using coercive force and points out that it requires legitimacy. 12  But the full import of this point is blunted by his inclusion of lawsuits, strikes and lockouts in the list of coercive means.  Such things are coercive but are different from violence.  Lawsuits, strikes and lockouts are situations of high drama, huge emotion and easily entrenched thoughts of win-lose.  But they are not normally accompanied by serious violence to the person.  The decision to pursue such violence Violent action needs a particularly strong legitimacy.  The costs in terms of human misery and the torn fabric of society may be incalculable.  So, while defending the right of the dispossessed to adopt violence I would suggest adding some proviso like ‘where there are no political, legal, constitutional, diplomatic or other non-violent means of achieving a just outcome’.  Absent all of these, bargaining appears to be impossible, as it once did to Mandela; and those who believe in the transformative power of negotiation must direct their efforts to influencing the power-holders, that the conditions for non-violent engagement may be brought about.

Even adding a blanket proviso may not be enough.  The presumption in favor of negotiation needs to be strengthened and Mandela’s example does that.  When, from prison, he made the first negotiating approach, not much had changed in the apartheid regime.  International sanctions were hurting, yes, but practically no one would have conceived it possible that the white minority would soon agree to majority rule.  Mandela’s initiative flew in the face of any rational calculation of the odds.  It seems to have originated from, and hoped to engage, what Lederach has called the moral imagination, “the capacity to imagine ourselves in a web of relationships that includes our enemies”. 13  There are other examples where those dispossessed of all else have not been dispossessed of this; and it too needs to have a place in the thinking through.  Mnookin, I think, would not disagree.

The transformational power of negotiation is beautifully illustrated in Mnookin’s non-political cases.,  The IBM-Fujitsu case is fascinating for its first-hand account of the very unusual blending of arbitration and mediation. 14  As it became clear during the bargaining process that resolving intellectual property disputes in technical terms was well-nigh impossible, the meaning of success switched to finding some other way of making progress.

Transformation doesn’t always happen.  The divorce case 15 is sad because the attempt to get the party to think through her interests fails.  Perhaps there was a fantasy that a judge would deliver a blow to the former spouse that the protagonist herself could not.  Perhaps such fantasies in divorce cases need further investigation.

The final case, of a family disputing their father’s will, 16 has a happier outcome.  It is notable for the risk Mnookin took in putting the focus on the relationship rather than the substantive issue of property.  This is a perennial chicken-and-egg question: does improving the relationship facilitate substantive agreement or does engaging on substantive issues engender grudging respect?

I think that, sooner or later, the questions Mnookin asks will force us into a discussion of fundamental human rights.  This is implied in his dealing with the limitations of the cost-benefit analysis approach 17 and in the book’s final endnote 18 in which he ponders the possibility of a deal with the Taliban that would guarantee US security in return for the strict application of Islamic law, including the effect this would have on the rights of women.  Such questions are among the greatest challenges of our time, and one hopes the author will return to them in a later work.

On reaching the end of the book, Mnookin says his goal was not to offer easy answers but to help us think more clearly about negotiating with those who do us harm.  In this goal he has succeeded handsomely and given us a book to return to often, to pause with open page, and think.

* Mnookin, R.,. Bargaining with the Devil. New York. Simon & Schuster (2010).
**Adjunct Professor in Management, J.E.Cairnes School of Business and Economics, National University of Ireland, Galway. He can be contacted at leo.smyth@nuigalway.ie
1 Bargaining with the Devil at 1
2 Id. at 27-32
3 Id. at 18-21
4 Id. at 104
5 Id. at 36-49
6 Id. at Chapter Four
7 Styron, W., Sophie’s Choice. New York. Vintage (1979).
8 Bargaining with the Devil Chapters Five and Six
9 Shakespeare, Hamlet Act 3, Scene 1
10 Bargaining with the Devil Chapter Seven
11 Id. at 2-3 and at 6-8
12 Id. at 29
13 Lederach, J.P., The Moral Imagination. Oxford. Oxford University Press (2005).
14 Bargaining with the Devil Chapter Seven
15 Id. at Chapter Nine
16 Id. at Chapter Ten
17 Id. at 263
18 Id. at 306

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.