Sometimes it is necessary to obtain evidence from non-parties during a reinsurance arbitration. Yet, the Federal Arbitration Act (“FAA”) does not expressly sanction non-party (or for that matter any) pre-hearing discovery. In practice, however, most parties ask the arbitration panel to issue a subpoena to a “hearing” and then negotiate with the non-party about producing documents without the need to appear at a hearing with a witness. Most non-parties just want the subpoena for their records (to protect against criticism from others about volunteering information) and will eventually agree to produce a negotiated set of documents. Moreover, nothing in the FAA bars a party from negotiating a common-sense resolution to a subpoena request.
But what happens if it turns out that a non-party witness is needed at the hearing or additional documents that the non-party did not produce are required? If the non-party does not voluntarily appear, a hearing subpoena or a summons is necessary to compel the testimony and documents. And what happens if the non-party fails to appear? A recent case addressed this issue in the context of a petition for enforcement of a hearing summons.