Witnesses in Arbitration – California Arbitration Act
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Testimony and documents may be obtained in arbitration in accordance with the parties’ agreement, the applicable institutional arbitration rules and provisions of law (federal and state arbitration acts, as applicable). This article addresses the California Arbitration Act (CAA); significant differences under the Federal Arbitration Act (FAA) will be discussed in Part II.
Documents: Some clauses and most rules contemplate an exchange of documents prior to the hearing (e.g., JAMS Comprehensive Arbitration Rule 17(a); AAA Commercial Arbitration Rule R-22). The CAA also authorizes pre-hearing exchange of documents in certain cases (Cal. Code Civ. Proc. § 1282.2). Where the parties have so provided in their agreement, broader discovery may be conducted pre-hearing (Code Civ. Proc. § 1283.05, 1283.1). These provisions are read into any arbitration agreement involving personal injury or wrongful death claims. Discovery in arbitration may also include issuance of subpoenas by the arbitrator for the production of documents from a third party. The arbitrator ordinarily must sign the subpoena; if it is issued pursuant to § 1283.05, the attorney may do so.
As a practical matter, parties may be able to use the arbitrator’s subpoena power as leverage to obtain documents voluntarily from third-parties where no right to discovery exists.
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