Eleventh Circuit Has Limited Arbitrator Authority to Issue Subpoenae under FAA

Most people know that arbitration is similar to, but not the same as, civil litigation. One way in which arbitration differs from litigation is the ability of parties to obtain documents and testimony from nonparties by subpoena.

As of Fall 2019 (yes, I know that’s not new but, judging by some recent conversations with counsel, arbitration advocates, and even some arbitrators, it may be news to them), the United States Court of Appeals for the Eleventh Circuit (the appellate court whose geography encompasses Florida, Georgia, and Alabama) has held, in Managed Care Advisory Group, LLC v. CIGNA Healthcare, Inc., 939 F.3d 1145 (11th Cir. 2019) (“Managed Care“), that arbitrators do not have the ability under the Federal Arbitration Act, 9 U.S.C. §§ 1 – 16 (“FAA”) to issue certain types of subpoenae.

First off, the Managed Care court stated that FAA does not authorize arbitrators to issue third-party subpoenae for discovery purposes. While this is frequently not as much of an issue in labor arbitration, where prehearing discovery from nonparties is historically rare, it can be disadvantageous to parties where records from nonparties can be important (as in, for example, when cell phone or medical records are relevant).

Second, of special significance to all kinds of arbitration in this post-COVID, Zoom hearings era, Managed Care held that arbitrators may not issue enforceable subpoenae requiring nonparty attendance at hearing by ZOOM or other electronic means. While arbitrators may still issue enforceable subpoenae requiring the attendance at hearing, the court stated that arbitrators may only summon persons to appear physically, i.e., in person, before them. (Admittedly, this decision came out before the COVID pandemic, but a recent Westlaw review found the case is still good law.)

Of course, Managed Care only applies to arbitrations subject to FAA.

So, if a state arbitration law applies (by way of nonexclusive example, most arbitrations between state or local government employers and unions representing their employees), Managed Care‘s restrictions will not limit arbitral subpoenae. Likewise, Managed Care is only binding precedent within the Eleventh Circuit, so other jurisdictions within the NAA Southeast Region that are outside the Eleventh Circuit’s geographical boundaries, i.e., Tennessee (Sixth Circuit), the Carolinas (Fourth Circuit), and Puerto Rico (First Circuit), are not subject thereto.

Moreover, the Sixth Circuit has expressly held labor arbitrators (i.e., arbitrations convened under the Labor Management Relations Act (LMRA) may issue prehearing discovery subpoenae to nonparties: “[U]nder § 301, a labor arbitrator is authorized to issue a subpoena duces tecum to compel a third party to produce records he [or she] deems material to the case either before or at an arbitration hearing.” American Federation of Television & Radio Artists (AFTRA) v. WJBK-TV, 164 F.3d 1004, 1009 (6th Cir. 1999). However, the Eleventh Circuit did not have a labor arbitration before it in Managed Care, and the court expressly distinguished the AFTRA case, so we do not know whether prehearing discovery subpoenae are enforceable in the Eleventh Circuit in labor arbitrations subject to LMRA.

For more discussion of Managed Care, and what to do if you’re in a state that falls within the Eleventh Circuit, see a relatively recent article in the Florida Bar’s Labor and Employment Section publication, The Checkoff.