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An Illinois federal district court ruled that non-party depositions or documents cannot be the subject of a pre-hearing arbitral subpoena under the Federal Arbitration Act.
In Matria Healthcare, LLC v. Duthie, No. 08 C 5090, 2008 WL 4500173 (N.D. Ill. Oct. 6, 2008), Matria sought to compel depositions and discovery of certain documents from Duthie before the parties’ arbitration hearing. Matria sought and received a subpoena from the arbitrator for Duthie to produce documents and participate in discovery, but Duthie objected, alleging that he was not required to do so under 9 U.S.C. § 7 and would not do so unless certain legal fees were advanced. Matria refused to advance those fees and sought court enforcement of the arbitral subpoena.
Citing then Third Circuit Judge Samuel Alito in Hay Group, Inc. v. E.B.S. Acquisition Corp., the Court noted that § 7 arbitral “subpoena authority is defined as the power to compel non-parties to appear before them; that is, to compel testimony by non-parties at the arbitration hearing.” 360 F.3d 404, 406, 410 (3d Cir. 2004). According to the Court, “[a] deposition simply does not fall within those terms.”
Furthermore, the Court found that Congress could not have intended to authorize arbitrators to require pre-hearing production of documents in arbitrations when “such pretrial production was anything but common” from non-parties, and “could not in any circumstances call for an adversary’s documents” under actions at law when the FAA was enacted. See U.S. Comp. Stat. § 724 (1901) (only requiring production of such adversarial documents “at trial,” not before); see also Carpenter v. Winn, 221 U.S. 533, 544-45 (1911) (interpreting § 724).
“The fact that Congress has not changed the language of § 7 in eighty years is compelling evidence that the original limitations inherent in § 7 were intended to remain undisturbed,” said the Court. Accordingly, the Court denied the motion to enforce the subpoena.
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