Thursday, December 21, 2017

Vividius v. Express Scripts (9th Cir. - Dec. 21, 2017)

The Federal Arbitration Act allows an aribtrator to “summon in writing any person to attend before them . . . as a witness and in a proper case to bring with him . . . any book, record, document, or paper which may be deemed material as evidence in the case.” 9 U.S.C. § 7.  The power to compel includes nonparties, since the statute says "any person".  The statute further provides that if such a person refuses to come (or produce documents), the arbitrator can ask the federal district court to force 'em.

The question then becomes:  Can you only make the non-party attend the actual hearing before the arbitrator, or can you make 'em produce documents before the hearing?

The Ninth Circuit today decides to join the Second, Third, and Fourth Circuits and hold that the power is limited to making 'em show up (and produce documents) at the hearing, not before.  The Eighth Circuit has held otherwise, so the Ninth Circuit joins the majority rule.

Okay.  Fair enough.

But it seems to me like this limitation is fairly easy to circumvent, no?  Why can't an arbitrator simply call a hearing, make the person attend (and give the documents/evidence), and then order the hearing continued to allow the parties to digest the documents/testimony?  Yes, the statute says that people can only be ordered to "attend before them . . . as a witness," and the Ninth Circuit agrees that means at an actual hearing.  But clearly arbitrators can continue hearings if they want.  So if the hearing begins in June, and the documents are produced then, and subsequently continued until December for the final adjudication on the merits, doesn't that make the majority rule essentially meaningless?  Or at least merely create a tiny procedural hoop that arbitrators have to jump through in order to get the documents they think should be produced?

Seems like it to me.  And pretty much impossible to stop.