A federal court in Ohio held that parties living outside a 100-mile radius of the arbitral seat may not be compelled to attend the hearing under the auspices of the Federal Arbitration Act (FAA); in cases where this "gap" is not provided for by the parties, the Federal Rules of Civil Procedure (Federal Rules) may be used as a gap-filler to procure evidence.

In Fazio v. Lehman Brothers, Inc., No. 1:02CV157, 2004 WL 5613816 (N.D. Ohio June 21, 2004), Fazio filed a motion to enforce a subpoena requiring people to appear as witnesses in an arbitration with Lehman Brothers. Lehman Brothers and several of the people ordered to appear filed motions to quash. The arbitration panel denied the motions.

Fazio issued new subpoenas. Lehman Brothers notified them that the individuals would not appear unless mandated by a court order. Fazio filed a motion to compel attendance with the Court.

Although the FAA allows an arbitral panel to subpoena witnesses, it does not provide for a procedure by which witnesses living 100 or more miles from the proceeding may be compelled to testify. A strict reading of the FAA would prohibit evidence from parties living outside the 100-mile radius of the seat of arbitration. A liberal reading would allow the subpoena of any person living within any distance from the seat.

The Amgen decision, cited by Fazio, resolved these extreme arguments by using the Federal Rules as a gap-filler. SeeAmgen, Inc. v. Kidney Ctr. of Delaware County, Ltd., 879 F.Supp. 878, 883 (N.D. Ill. 1995). The parties in that case had agreed to application of the Federal Rules. The Court found that was not the case here.

Instead, the Court determined that an alternative method by which to secure evidence from witnesses living outside the 100-mile radius was the application of Fed. R. Civ. P. 81. Rule 81(a)(6)(B) states that the Federal Rules apply to arbitration proceedings where the FAA does not provide for a particular procedure.

The FAA does not provide a sufficient procedure for securing evidence from parties living outside the 100-mile radius. Accordingly, Fed. R. Civ. P. 45 and 32 were deemed to fill the gap. These rules allow for a deposition subpoena and use of that deposition in lieu of live testimony, respectively.

Thus, Fazio's motion to compel the appearance of witnesses living outside the 100-mile radius was denied.