Commercial Litigation and Arbitration

Arbitration — Can Arbitrators Compel Pre-Hearing Document Discovery from Third Parties? Circuit Split

McGreal v. AT&T Corp., 2012 U.S. Dist. LEXIS 140686 (N.D. Ill. Sept. 24, 2012):

Footnote 7. The Circuits are split as to whether the FAA authorizes arbitrators to compel pre-hearing document discovery from third parties. The Sixth and Eighth Circuits have held that such power is implicit in the FAA's grant of power to compel document production for a hearing. See In re Sec. Life Ins. Co. of Am., 228 F.3d 865, 870-71 (8th Cir. 2000); Am. Fed'n of Television & Radio Artists, AFL-CIO v. WJBK-TV (New World Commc'ns of Detroit, Inc.), 164 F.3d 1004, 1009 (6th Cir. 1999). The Second, Third, and Fourth Circuits have read the "to bring with him" language in Section 7 of the FAA more narrowly to limit an arbitrator's authority to compel non-parties to produce documents only when they are testifying before the arbitrator. See Life Receivables Trust v. Syndicate 102 at Lloyd's of London, 549 F.3d 210, 216-17 (2d Cir. 2008); Hay Group, Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404, 408-09 (3d Cir. 2004); COMSAT Corp. v. Nat'l Sci. Found, 190 F.3d 269, 275-76 (4th Cir. 1999). The Seventh Circuit has not addressed the issue.

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