Getting Real About Discovery in Arbitrations
Arbitration is not like litigation. Among the ways they differ is the way in which discovery is treated. Because of the revolutionary impact on our business and personal lives of electronic communications, modern-day discovery is often an exercise in discovering, managing, and using electronic data. In addition, because of the relative ease of travel to and digital communications with people in far-flung places, depositions are regularly noticed to occur in venues far removed from the venue of the litigation; use of video-conferencing now eases the burden of transcontinental and intercontinental travel; and courts regularly authorize the issuance of subpoenas duces tecum to third parties. For at least the last 30 years, arbitrators have wrestled with the same revolution facing courts. However, because of the fundamental differences between litigation and arbitration, codified in the Federal Arbitration Act, or similar state statutes, arbitrators, and courts dealing with enforcement issues, have dealt with the revolution in very different ways.
The Federal Arbitration Act was adopted in 1925, predating the Federal Rules of Civil Procedure and similar state codes. In the almost 100 years since adoption, the FAA hasn’t substantively changed in material aspects. In 1925, there was scant use of depositions, and nothing like nationwide service of process or any form of modern electronic communications.
Section 7 of the FAA regulates the taking of discovery on third parties. That provision provides, as follows: The arbitrators … may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case. … Said summons shall issue in the name of the arbitrator or arbitrators, or a majority of them, and shall be signed by the arbitrators, or a majority of them, and shall be directed to the said person and shall be served in the same manner as subpoenas to appear and testify before the court; … 9 USCA §7 (emphasis added). What it means to “attend before them” or “bring with him … any book” are likely to be answered differently if analyzed from the perspective of what those words meant in 1925 or from the perspective of their meaning in 2020.