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Civil Litigation Civil Litigation Section Volume 10, No. 3 Civil Litigation Civil Litigation Section Chair Janis L. Wilson Chair-elect Stanley J. Parker Update Vice Chair Malcolm L. MacGregor Fall 2005 Secretary Robert E. Rosenthal Treasurer David R. Fine Non-Party Discovery in Immediate Past Chair Mark L. Tunnell Commercial Arbitration: Newsletter Editor Henry M. Sneath Legal Hurdles and Practical Associate Newsletter Editor Bridget M. Gillespie Suggestions PBA Newsletter Liaison Patricia M. Graybill By Albert Bates Jr. PBA Staff Liaison Michael Shatto The propriety and extent of discovery Since arbitration in complex commercial arbitration has is a creature of con- been the subject of extensive debate. tract, the parties are While the exchange of potential exhibits free to craft the pro- Contents and identification of witnesses prior to the cedures that will arbitration is required by the rules of most govern their arbitra- arbitral institutions, other aspects of dis- tion, including the Message from the Chair....................2 covery, including the extent of document nature and extent of Message from the Editor...................2 exchange, the use of expert reports, the discovery among the Albert Bates Jr. permissibility of depositions or interroga- parties. However, Recent Cases of Note........................3 tories and the issuance of subpoenas com- third parties are generally not bound by Pennsylvania Federal Business pelling discovery from non-parties, are the terms of an agreement to arbitrate to Decisions...........................................6 generally left to the discretion of the arbi- which they are not signatories. trators. Consequently, while an arbitrator can Expert’s Corner Visual Strategy: issue a subpoena duces tecum to require Optimizing the Evidence...................9 Albert Bates Jr. is a partner in the a non-party to appear for deposition Litigation and Construction Services and/or to produce documents in advance Dates to Remember.........................15 Groups of Reed Smith, and is the leader of the arbitration, the arbitrators cannot Annual Civil Litigation Section of Reed Smith’s Commercial and Inter- enforce the subpoena if a non-party fails Retreat .............................................24 national Arbitration Team. He is also a to comply. In the court proceeding to member of the Council of the Civil enforce the arbitrator’s subpoena, the Litigation Section. central question is whether the arbitrator CONTINUED ON PAGE 10 Non-Party Discovery in arbitration unless the parties specifi- an arbitrator to order a non-party to Commercial Arbitration: cally agree that the arbitration shall produce documents in advance of the Legal Hurdles and be governed by the arbitration law of hearing or appear for a discovery Practical Suggestions a particular state. For example, lan- deposition. guage such as the following demon- In a recent case, the Court of strates an objective intent that the Appeals for the Third Circuit held CONTINUED FROM PAGE 1 agreement to arbitrate be subject to a that an arbitrator’s subpoena power state arbitration law rather than the under the FAA is limited to ordering had the legal authority to compel the FAA: “This arbitration, and any sub- a non-party to appear before the arbi- non-party to produce the documents sequent proceeding to enforce, mod- trator to testify or produce docu- in advance of the hearing and/or ify, vacate or confirm the arbitration ments. Hay Group, Inc. v. E.B.S. appear for the discovery deposition. award, shall be governed by the Acquisition Corp., 360 F.3d 404, 407 Unfortunately, the answer to that Pennsylvania Arbitration Act of (3rd Cir. 2004). See also Recent question depends upon the law gov- 1980.” An unequivocal expression of Developments, Hay Group Inc. v. erning the arbitration proceeding. contractual intent to be bound by a E.B.S. Acquisition Corp., 20 J. Disp. The two potential sources of state arbitration act will not be pre- Resol. 1039 (2005). The Fourth governing arbitration law are the empted by the FAA unless the state Circuit has taken a more tempered Federal Arbitration Act (FAA) and arbitration law conflicts with the pur- approach, holding that the FAA does various state arbitration acts, includ- poses of the FAA. However, the not grant an arbitrator the authority ing the Pennsylvania Arbitration Act majority of cases hold that a general to demand that a non-party produce (PAA). After addressing the issue of choice of law provision determines documents for pre-hearing discovery, whether federal or state law governs the substantive law applicable to the but suggesting in dicta that an arbi- the conduct of the arbitration and the underlying transaction, but is not suf- trator may order discovery upon a enforcement of the arbitral award, ficient to invoke the arbitration law non-party “under special circum- this article will discuss the split of of that state. Id. Consequently, in the stances” and “upon a showing of spe- authority among the courts of absence of a specific agreement as to cial need or hardship.” COMSAT appeals concerning non-party dis- the law governing the arbitration, the Corp. v. Nat’l Science Foundation, covery under the FAA, and the diver- FAA will generally apply so long as 190 F.3d 269, 276 (4th Cir. 1999). At gence among state arbitration acts the arbitration agreement involves the opposite end of the spectrum interstate or international from Hay, the Eighth Circuit has regarding non-party discovery in 1 arbitration. Specifically, this article commerce. held that the power to compel non- will address the extent of permissible parties to produce documents prior to II. Availability of Third-Party the arbitration hearing is “implicit” non-party discovery under the Discovery Under the Federal Pennsylvania Arbitration Act (PAA), in the authority granted to arbitrators and State Arbitration Acts in Section 7 of the FAA, and that the the Uniform Arbitration Act (UAA) A. Federal Arbitration Law: and the Revised Uniform Arbitration “efficient resolution of disputes Third-Party Discovery through arbitration” is furthered by Act (RUAA). This article will con- Under the FAA: clude by offering practical sugges- permitting limited third party discov- Section 7 of the FAA grants arbi- ery. Arbitration between Security tions to assist in creating more cer- trators the authority to summon “any tainty in the arbitration process. Life Insurance Company and person to attend before them or any Duncanson & Holt, Inc., 228 F.3d of them as a witness and in the prop- I. What Law Governs the 865, 870 – 71 (8th Cir. 2000). The er case to bring with him or them any Conduct of the Arbitration? Sixth Circuit, in a case arising under Anne Devens, a partner in Reed book, record, document or paper Section 301 of the Labor Smith’s Northern Virginia office, which may be deemed material as the Management Act of 1947 and decid- recently authored an article entitled, evidence indicates.” 9 U.S.C. § 7 ed prior to Duncanson, also com- “Federal Versus State Arbitration (2000). Consequently, the FAA mented that the FAA “has been held Laws: Whose Law Applies and Why expressly permits an arbitrator to to implicitly include the authority to Does it Matter?” (www.vba.org/ compel a non-party to attend the compel the production of documents comm/Fed%20v.%20State%20 arbitration and/or to produce docu- for inspection by a party prior to the Arbitration%20Final.pdf). In her ments to the arbitrators at the arbi- hearing.” Am. Fed’n of Television & article, Devens concludes the FAA tration. However, federal courts are Radio Artists v. WJBK-TV, 164 F.3d generally governs the conduct of the split over whether Section 7 permits 1004, 1009 (6th Cir. 1999). 10 Civil Litigation Update While several district courts have The Uniform Arbitration Act conferring the authority upon an also addressed this issue, the remain- (UAA), promulgated in 1955, has arbitrator to compel witnesses to ing federal courts of appeals have not been adopted with varying modifica- attend the hearings or produce docu- ruled upon the availability of third- tions in 49 states, including ments to the arbitrators, the Hay party discovery in arbitration pro- Pennsylvania. Section 7 of the UAA, court took a different view, stating: ceedings. which addresses witnesses, subpoe- [S]ome states have recently While the federal law is not set- nas and depositions, is similar in adopted versions of the tled, two general points can be most respects to Section 7 of the Uniform Arbitration Act, gleaned from these cases. First, the FAA. Like the federal courts of which differ from the Federal location of the arbitration may appeals, state courts are split on Arbitration Act. Some of determine the extent to which third- whether Section 7 of the UAA per- these state statutes explicitly party discovery requests are mits an arbitrator to order a non- grant arbitrators the power to enforceable under Section 7 of the party to produce documents or issue pre-hearing document FAA. Under current law, permissi- appear for a discovery deposition. production subpoenas upon ble discovery upon non-parties While the majority of courts have third parties. See, e.g. … 42 under the FAA is far broader in an allowed discovery at the discretion of Pa. C.S.A. § 7309 (“The arbitration conducted in St. Louis the arbitrator and enforced subpoe- arbitrators may issue subpoe- than in one conducted in Pittsburgh nas accordingly, some courts have nas in the form prescribed by or Philadelphia. The extent of per- interpreted Section 7 as not permit- general rules for the atten- missible third-party discovery in ting any pre-trial discovery, and dance of witnesses and for arbitrations conducted under the other courts have required a showing production of books, records, FAA in venues such as Chicago, of “extraordinary circumstances” documents and other evi- California, Florida or Texas remains before allowing discovery in an arbi- dence.”) The language of an open issue, at least at the appel- tration proceeding.
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