Ninth Circuit Addresses Circuit Split Regarding Arbitral Discovery
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The Ninth Circuit recently discussed a circuit split in the context of subpoena powers and discovery under the FAA in the case of CVS Health Corporation v. Vividus, LLC, No. 16-16187 (9th Cir. Dec. 21, 2017) (click here for a copy of the decision).
Section 7 of the FAA generally grants arbitrators the authority to subpoena witnesses for a hearing, including the bringing of relevant documents to the hearing, and if a witness refuses to honor the subpoena, a district court has authority to enforce the subpoena and punish the witness. The arbitration panel in this case issued a subpoena to a non-party to produce certain documents prior to a hearing. When the non-party refused to respond, one of the parties to the arbitration asked a district court to enforce the subpoena pursuant to section 7 of the FAA. However, the district court refused, finding that the FAA does not grant arbitrators such a power to compel pre-hearing production of documents from a non-party. The Ninth Circuit affirmed the district court’s order.
The Ninth Circuit relied on the text of section 7, which provides that arbitrations may compel the attendance of a person “to attend before them . . . as a witness,” and to “bring with him” relevant documents. Because this language only discusses the hearing itself, and not any pre-hearing discovery, the Ninth Circuit ruled that section 7’s subpoena powers do not cover pre-hearing discovery. The Ninth Circuit noted that its decision conflicted with the Eighth Circuit, which has held that section 7’s broad subpoena power for a hearing encompasses the lesser subpoena power regarding pre-hearing discovery.
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