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Navigating Arbitral Subpoenas in A Post-COVID Landscape

Aug 1, 2022

As a result of the COVID-19 pandemic, attorneys, judges and clients alike have had to adapt to changes in how our legal system works, and sometimes, how it does not work. One such area with far-reaching implications is arbitral subpoenas, which was overdue for a reevaluation.

While the statutory authority behind arbitral subpoenas is seemingly apparent and well-settled, their enforcement during the pandemic illustrated how uncertain the legal landscape in this area truly is. Ahead of any arbitration proceeding, it is critical for lawyers to understand the current state of the law, how best to navigate it, and what needs to change going forward.

Prior to the pandemic, attorneys involved in an arbitration would issue a subpoena to a potential witness, and as long as that person lived within 100 miles of the location in which the arbitration proceedings were being held — a requirement known as the 100-mile territorial limitation — they could be compelled to appear in person, participate and provide relevant documents.

The authority to compel witnesses in an arbitration is derived from Section 7 of the Federal Arbitration Act, or FAA, which states that arbitrators "may summon in writing any person to attend before them … as a witness."[1]

The 100-mile rule, as it is more commonly known, derives from Federal Rule of Civil Procedure 45, which allows for nationwide subpoenas "within 100 miles of where the person resides, is employed, or regularly transacts business in person" to reduce the burden of travel on nonparties.[2]

A person residing within 100 miles of the arbitration proceedings who is served with a valid subpoena issued by an arbitrator may be held in contempt of the court if they refuse to participate.

With the pandemic, no one was appearing in person for court proceedings. Instead, the courts adapted to remote proceedings and videoconferencing became the new normal. But the rules of arbitration are such that their ability to adapt was much more limited.

Arbitrators only have authority expressly provided in statutes or by the parties, with very little discretion to fashion practical solutions to problems. In an environment in which remote proceedings were the only way for arbitrations to move forward, the murkiness around the physical presence requirement and 100-mile rule became apparent.

Over the last two decades, federal courts across the country have taken different approaches to enforcement of the subpoenas, and the case law around arbitral subpoenas became even more convoluted. Potential witnesses have been able to use that to their advantage to avoid participation in arbitrations, to the detriment of litigators and parties who count on their testimony. The question now is, when can an arbitral subpoena be enforced, upon whom, for what, and where?

For the FAA's presence requirement, the question is how literally to interpret the statutory language "to attend before them." During the pandemic, potential witnesses seeking to evade participation argued that the presence requirement should be interpreted literally, and that videoconferences did not suffice. Because no one was meeting in person, witnesses could avoid the arbitration altogether.

The U.S. Courts of Appeals for the Second, Third and Eleventh Circuits, as well as the U.S. District Courts for the Western District of Kentucky and the Eastern District of Michigan, among others, appear to agree and require a physical presence before an arbitrator under Section 7.[3]

However, there are also several cases that allowed for remote testimony from witnesses outside the geographical limitation without expressly distinguishing those cases requiring a physical presence.[4] Some parties in favor of compelling remote witnesses have tried to rely on FRCP 43, which states:

Ordinarily depositions, including video depositions, provide a superior means of securing the testimony of a witness who is beyond the reach of a trial subpoena, or of resolving difficulties in scheduling a trial that can be attended by all witnesses.[5]

Once again, courts are split on whether to read FRCP 43 as weighing in favor of permitting remote testimony of third parties under FRCP 45.[6] Some courts refuse to permit remote testimony under FRCP 43 where a third-party subpoena under FRCP 45 would not be authorized in the first place,[7] noting that FRCP 43 does not operate to extend the reach or requirements of a subpoena.[8]

For arbitral subpoenas in prehearing discovery, the Second, Third and Eleventh Circuits, as well as the U.S. Court of Appeals for the Ninth Circuit, read the FAA as requiring that nonparty document disclosure take place only when the nonparty appears at a hearing before the arbitrators.[9]

As a matter of practice, parties that accept the validity of the subpoena will sidestep this unnecessary process by simply agreeing that the witness need not appear at the hearing if they provide the documents requested prior to the hearing. Otherwise, the presence requirement could be met by calling a very early hearing date at which the witness appears in order to provide documents.

That parties obtain third-party discovery in this manner — i.e., without the presence of the arbitrator — shows the inadequacy of that view. The more practical and efficient view is espoused by the U.S. Court of Appeals for the Sixth Circuit and the U.S. Court of Appeals for the Eighth Circuit, authorizing an arbitrator's implicit authority to subpoena documents prior to the hearing.[10]

For the 100-mile rule, potential witnesses seeking to avoid an arbitration argue that the rule applies regardless of whether the arbitration is handled virtually, so even if they can appear virtually, their location outside the 100-mile range renders them exempt. District and circuit courts have found vastly different ways to interpret this restriction, with the minority of courts opposing the 100-mile limitation and acknowledging that it was created to ease travel burdens that are no longer an issue with videoconferencing.

In its 2021 decision in International Seaway Trading Corp. v. Target Corp, the U.S. District Court for the District of Minnesota ruled:

Virtual attendance of this nature is consistent with the plain language of Rule 45(c)(1)(A) because he has been commanded to attend the deposition within 100 miles of where he resides.[11]

In 2016, the U.S. District Court for the Southern District of New York noted in Probulk Carriers Limited v. Marvel International Management and Transportation that the "point of the addition of those provisions is to avoid imposition of unreasonable travel burdens."[12]

Earlier this year in Chestnut v. Kincaid, the U.S. District Court for the District of Maryland noted "other courts have found that the 100-mile restriction is not violated where the person is not instructed to appear at the location of production."[13]

Other case law strictly applies the rule, regardless of how the hearing is conducted. In its 2014 decision in Ping-Kuo Lin v. Horan Capital Management LLC, the Southern District of New York this time refused to compel a witness to testify at a hearing more than 100 miles from their residence, even by videoconference.[14]

The U.S. District Court for the Northern District of California in Day v. Orrick Herrington & Sutcliffe LLP ruled in 2021 that an arbitrator cannot sit in more than one location for purposes of FAA Section 7 because the arbitration has only one legal seat that does not change, and since the seat was more than 100 miles from the witness, it had no power to enforce the subpoena.[15]

There also does not appear to be much appetite in the Second Circuit to eschew the 100-mile rule or physical presence requirement. Rather, there seems to be a deliberate choice to construe the FRCP and the FAA narrowly, according to their perceived plain language.

For example, in February 2021, U.S. District Judge Jed Rakoff of the Southern District of New York considered the issue in Broumand v. Joseph, and agreed with the courts that have held that "a party may be able to use Rules 43(a) and 45(c) to compel a witness to testify remotely from a location within 100 miles of her residence but only upon a showing of good cause in compelling circumstances."[16]

The mess of case law surrounding this issue demonstrates how these laws were not built for advances in technology, and given the capabilities of a post-COVID-19 society, many of the limitations they impose feel archaic. The long-term solution is to amend the FAA and FRCP 45 to reflect the realities of a much more virtual culture. While the necessity to subpoena nonparties in arbitration proceedings has not lessened since the passage of the FRCP or the FAA, the barriers to access such witnesses have been all but destroyed.

The 100-mile rule was created to limit burdening witnesses and prevent litigators from issuing excessive subpoenas to witnesses not material to the case.[17] Virtual solutions solve for the first aspect, and a simple solution to the second is a reasonable limit on the number of witnesses that can be subpoenaed as part of any one arbitration.

In the meantime, virtual arbitrations will continue. Before initiating an arbitration with an intent to subpoena witnesses across the country, potential litigants should be aware of the functional landscape and limitations of arbitral subpoenas. Accordingly, attorneys considering commencing an arbitration should consider this possible limitation on third-party evidence and not agree too readily to holding the arbitration remotely.

Transactional practitioners should consider whether the arbitration clauses they use in contracts contemplate videoconferencing, and if not, whether they can include terms to prevent unwelcome surprises in attempting to collect and present evidence.

The pandemic shone a bright light on how limited and outdated the FAA and FRCP 45 are. While the process of amending those statutes plays out, attorneys should be aware of these rules and understand that they could dramatically affect their case.


Disclosure: Emily Kirsch represented petitioner Stafford Broumand in Broumand v. Joseph, mentioned in this article.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.



[1] 9 U.S.C.A. § 1-14.

[2] Fed. R. Civ. P. 45(c)(1)(A).

[3] Life Receivables Tr. v. Syndicate 102 at Lloyd's of London , 549 F.3d 210, 218 (2d Cir. 2008); Hay Group Inc. v. E.B.S. Acquisition Corp. , 360 F.3d 404, 407 (3rd Cir. 2004) (Alito, J.); Managed Care Advisory Group LLC v. CIGNA Healthcare Inc. , 939 F.3d 1145, 1160 (11th Cir. 2019); Westlake Vinyls, Inc. v. Cooke , 2018 WL 4868993, at 4 (W.D.Ky., 2018); Dodson Int'l Parts, Inc. v. Williams Int'l Co., Inc., 2019 WL 5680811, at 2 (E.D.Mich., 2019).

[4] Int'l Seaway Trading Corp. v. Target Corp. , 2021 WL 672990, at 5 (D. Minn. Feb. 22, 2021); Probulk Carriers Limited v. Marvel International Management and Transportation , 180 F.Supp.3d 290, 293 (S.D.N.Y. 2016); In re National Financial Partners Corp. , 2009 WL 1097338 (E.D. Pa. Apr. 21, 2009); In re Xarelto (Rivaroxaban) Products Liability Litigation , 2017 WL 2311719, at 4 (E.D.La., 2017); In re Newbrook Shipping Corp. , 498 F.Supp. 3d 807, 816 (D. Md. 2020); Chestnut v. Kincaid , 2022 WL 350117, at 2 (D. Md., 2022); United States v. $110,000 in United States Currency , 2021 WL 2376019, at 3 (N.D.Ill., 2021); Official Committee of Unsecured Creditors v. Calpers Corporate Partners LLC , 2021 WL 3081880, at 2–3 (D. Me., 2021).

[5] Fed. R. Civ. P. 43, Advisory Committee Notes, 1996 Amendment.

[6] See, e.g., In re Xarelto (Rivaroxaban) Prod. Liab. Litig. , No. MDL 2592, 2017 WL 2311719, at 2 (E.D. La. May 26, 2017); Mullins v. Ethicon, Inc. , No. 2:12-cv-02952, 2015 WL 8275744, at 2 (S.D.W. Va. Dec. 7, 2015).

[7] See, e.g., Black Card LLC v. Visa USA Inc. , 2020 WL 9812009, at 3 (D.Wyo., 2020).

[8] Ping-Kuo Lin v. Horan Capital Management LLC , 2014 WL 3974585, at *1 (S.D.N.Y.,2014).

[9] See Life Receivables Trust v. Syndicate 102 at Lloyd's of London, 549 F.3d 210, 218 (2d Cir. 2008); Hay Grp Inc. , 360 F.3d at 406-07; CVS Health Corp. v. Vividus LLC , 878 F.3d 703, 706 (9th Cir. 2017); see also Managed Care Advisory Group LLC v. CIGNA Healthcare Inc. , 939 F.3d 1145 (11th Cir. 2019) (arbitration subpoena commanding attendance by video not enforced)). The appearance can be a prehearing held for that purpose held before the merits hearing (Stolt-Nielsen, 430 F.3d at 578).

[10] AFL-CIO v. WJBK-TV (New World Comm. of Detroit Inc.) , 164 F.3d 1004, 1009 (6th Cir. 1999); In re Sec. Life Ins. Co. of Am. , 228 F.3d 865, 870-71 (8th Cir. 2000).

[11] Int'l Seaway Trading Corp. v. Target Corp. , 2021 WL 672990, at 5 (D. Minn. Feb. 22, 2021).

[12] Probulk Carriers Limited v. Marvel International Management and Transportation , 180 F.Supp.3d 290, 293 (S.D.N.Y. 2016).

[13] Chestnut v. Kincaid , 2022 WL 350117, at 2 (D. Md., 2022).

[14] Ping-Kuo Lin v. Horan Cap. Mgmt. LLC , 2014 WL 3974585 (S.D.N.Y. Aug. 13, 2014).

[15] Day v. Orrick, Herrington & Sutcliffe LLP , 2021 WL 4069753, at 2 (N.D. Cal., 2021).

[16] Broumand v. Joseph , 522 F.Supp.3d 8 (S.D.N.Y., 2021).

[17] See, e.g., U.S. v. $110,000 in U.S. Currency, No. 21 C 981, 2021 WL 2376019, at 3 (N.D. Ill. June 10, 2021).

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