There is no clear path to securing discovery from third parties prior to an arbitration hearing. Indeed, courts are divided on their authority to enforce third-party subpoenas issued in the context of an arbitration proceeding. In jurisdictions where the enforceability of third-party subpoenas is limited or uncertain, parties may have to consider alternatives.

 

Suppose that your client is engaged in an arbitration pending in Ohio. At your request, the arbitrator issues a third-party subpoena for a witness to appear in Ohio for a deposition. The witness’s testimony and the documents requested in the subpoena are critical evidence; in fact, failure to secure the materials would put your client at a distinct disadvantage in proving the amount of damages it is owed at the arbitration hearing. The third party’s attorney informs you that the witness will not appear for deposition absent a court order. Thereafter, you cause the federal district court to issue a subpoena pursuant to Rule 45.

 

The third party files a motion to quash, arguing that the district court lacks the authority to enforce the subpoena because it was improperly issued. The district court agrees, noting that Rule 45 does not in and of itself confer federal jurisdiction; rather, it provides a vehicle for obtaining third-party discovery that is tied to the existence of an action subject to federal jurisdiction. Absent such action, there is no independent federal jurisdiction under Rule 45. Accordingly, the court holds that the existence of an underlying arbitration is insufficient to confer independent jurisdiction for purposes of seeking discovery from third parties and enforcing subpoenas.

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