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Subpoenas in Arbitration - What are your thoughts?

Many advocates are not as familiar with the legal framework and constraints governing the issuance of subpoenas in arbitration. How have you handled ensuring that advocates are sufficiently versed on this topic? Conducting status conferences where the proper practices are discussed? Pointing counsel to resources where they can educate themselves? Please share your insights.

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In 2015, The New York City Bar Association's Committees on Arbitration and on International Commercial Disputes prepared a model federal arbitration summons (subpoena), with extensive annotations, for the purpose of compelling testimony documentary evidence at an arbitration hearing. The model summons is still fairly current and can be found here: https://www2.nycbar.org/pdf/report/uploads/20072911-ABCNYModelArbitralSubpoena.pdf.

Arbitrators and counsel should read it before subpoenaing evidence from non-parties.

A recent decision, In Re Roche Molecular Sys., Inc., 2018 WL 1938327, at *5 (Sup. Ct. Westchester Co. Apr. 24, 2018), also provides guidance on additional options.

I generally raise the topic in the initial procedural conference by asking counsel if they anticipate any issues with the appearance of witnesses. I note that the formal process sometimes takes a long time and usually provide a deadline to request summonses from the panel. I refer the parties to the New York City Bar Association report and frequently send them a link or copy after the conference.

For arbitrations covered by the state's version of the Revised Uniform Act, always check to see if arbitration discovery subpoenas are permitted. For FAA arbitrations, check the law of the circuit of the witness and the arbitration site. See our book sections 3-1:4.2b and 3-1:4.8a/b.

Early on in my ADR career if the parties wanted to issue subponae I would sign off with little inquiry leaving enforcement to Counsel. I then had a long conversation with sitting Judge who told me that when Counsel come to Court to enforce an arbitration subpoena, he assumed there had been some due diligence by the Panel and proceeded to enforce the subpoena. Since then if Counsel want me to sign off on a subpoena I will have a (usually telephonic) hearing on the basis of the subpoena etc. and issue an Order approving same which Counsel can present to the Court. Never had one denied but the record was protected.

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