Deposition Subpoena - What are your thoughts?

| 12 Comments

Should an arbitrator agree to sign a deposition subpoena for a non-party out of state deposition, knowing it is not legally enforceable?

Please provide your thoughts/comments below.

12 Comments

It is enforceable if processed correctly. Otherwise, why do anything that is invalid?

The proposition presented may not be accurate depending on what statutory and case law applies. A lengthy discussion of this issue is found in a number of articles to include "A Model Federal Arbitration Summons To Testify And Present Documentary Evidence At Arbitration Hearing" By the International Commercial Disputes Committee and Arbitration Committee of the New York City Bar Association (May 2015).

I would sign the subpoena. Our role as arbitrators is to organize, manage, facilitate and ultimately adjudicate the merits of the case. It is not for us to protect a third party witness from the use of an unenforceable subpoena. It is for the witness to contest, or not contest, the subpoena's enforceability. Sometimes a witness wants a subpoena in hand before providing assistance, and may elect not to challenge enforcement. We should not make this decision for them at the expense of the party seeking the discovery.

Colorado has a statute that authorizes district courts to validate out of state subpoenas. A case has to be filed. The witness has to be served to appear in court. The judge serves the witness with the subpoena and orders the witness to honor it, and tenders the required travel funds or airline tickets. If the witness ignores the subpoena, the judge can impose contempt penalties. So an arbitrator's subpoena from out of state is enforceable through this vehicle. Speaking out of ignorance, I believe that most states have a similar, expedited mechanism. So arbitrators can issue subpoenas, knowing that the enforcement occurs elsewhere.

The answer is NO if you know it is not legally enforceable. There are an awful lot of reasons why, including credibility and not assisting in persuading an out of state non party that he had to do something he doesn't have to do. Seems pretty fundamental to me.

In my opinion an arbitrator has the obligation to follow the applicabke law.
If the Subpoena is not authorized under the Law of theCircuit interpreting
Sec 7 of the FAA or the applicable state law the arbitrator should not sign the subpoena.
That is the position of theNYC Bar report.

To do otherwise subverts the rule of law.

I would sign the subpoena because often witnesses (especially companies) want a subpoena for documentation of the request and are not concerned with whether it is enforceable

NEVER sign a document which you know to be illegal. Sure, a witness appreciates a subpoena in order to facilitate getting out of work and being able to testify. But what could that possibly have to do with an Arbitrator performing an illegal act? To scare a witness into an honoring an illegal subpoena? To force an unsuspecting citizen to appear without legal basis? Putting the obligation onto a witness to discern the illegality of the subpoena seems antithetical to our mission of fairness, professionalism and civility!

I think some of the respondents misunderstood the question: It does not assume that all such subpoenas are unenforcible. It is meant to ask "Should an arbitrator . . . IF HE KNOWS it is not (etc.)."

Beyond that, I agree with Mr. Purcell and would not sign a subpoena I know is unenforcible. If I don't know I would probably might ask the requesting party to submit authority on the applicable law and, of course, give the opponent a chance to rebut. If still in doubt, I would probably sign, following Mr. Certilman's reasoning. I don't think it would be my place to undertake research beyond the AAA rules.

I agree with Steven Certilman's line of reasoning. I am currently involved in an arbitration where this issue came up. We asked the party seeking the subpoena why the request was being made because the witness was in California. The explanation was that the witness was willing to appear but would not do so without a subpoena in hand. So the key is to first determine why the subpoena is being asked for and if there is a reasonable explanation, then what harm is there in complying? So far as I can see, none.

Starting with the given, as posed in the question, that the arbitrator knows the requested subpoena to be unenforceable it should not be issued. To do otherwise would involve the arbitrator in a deception that smacks of the illicit tactics of some collection agencies who issue phony subpoenas and might even be viewed as borderline illegal. Of course, if counsel represents that the witness is a willing participant who simply wants the comfort (or cover) of a subpoena a different decision might be made.

Although most US attorneys think of depositions as primarily a discovery device, they often serve a different, salutary function: obtaining the testimony of witnesses who cannot be compelled to attend the trial or hearing. If an arbitrator believes the testimony of a third party witness is material to the determination of the merits, then he or she should cooperate with the party seeking to secure such testimony. If the witness is located in a jurisdiction that will not enforce the arbitrator's subpoena and the witness will not comply voluntarily, then arbitrator should consider other procedures, such as seeking letters rogatory from the local court, or convening a special hearing in the jurisdiction where the witness is located.

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This page contains a single entry by Jeffrey Zaino published on January 10, 2017 12:01 PM.

Unethical Conduct by Counsel - What are your thoughts? was the previous entry in this blog.

Prior Relationships - What are your thoughts? is the next entry in this blog.

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