ACR-GNY - Subpoena to a 3rd Party Witness

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Subpoena to a 3rd Party Witness

Tuesday, October 14, 2025 6:05 PM | Anonymous

Motion to Quash Subpoena - California Business Lawyer & Corporate Lawyer

How should arbitrators address requests to issue subpoenas addressed to a 3d party witness located outside of the state in which an in-person hearing is scheduled? In a remote arbitration, where exactly is the hearing “located” for purposes of Rule 45?

What are your thoughts?

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Thursday, October 16, 2025 3:03 PM | Gerald Baldwin

I tell counsel that I can issue a subpoena but I cannot enforce it. They must find a judge wherever the witness is located and seek enforcement.

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Thursday, October 16, 2025 3:09 PM | Mark Bunim

I always tell parties that I will only sign a subpoena that is enforceable and that if the witness goes to court, the Judge will not quash. In the preliminary hearing order, there is an instruction telling counsel that any request for a subpoena must be accompanied by a brief demonstrating its enforceability. In a request for a subpoena for a witness who resides more than 100 miles from the site of the hearing, the subpoena should state that the witness must appear in the location that they reside. We move the hearing to the witness, not the other way around. If after service of that subpoena everyone, including the witness, stipulates to the witness appearing remotely, then it is fine. A party cannot subpoena a witness to appear via zoom; Federal courts (in New York) will not let that stand. Counsel should be familiar with Judge Rakoff's decision in Broumand v. Joseph, 522 F.Supp.3d 8 (S.D. N.Y. 2021)

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- Thursday, October 16, 2025 4:02 PM | Peter Rundle
  
  Agreed. Some third-parties might feel compelled to comply with an improperly issued subpoena by virtue of its mere in terrorem effect. Arbitrators should not participate in that practice. If we know the subpoena is not valid, we should not issue it. Similar to Broumand, the Ninth Circuit in In re: John Kirkland (No. 22-70092 - B.C. No. 2:12-ap held that Rule 45's geographic limitations applied to virtual hearings. In that case, the Bankruptcy Court sitting in Los Angeles sought to compel through subpoena individuals residing in the Virgin Islands to testify virtually. In granting a petition of mandamus relief, the Ninth Circuit stated: "We conclude that mandamus relief is warranted. We have not previously addressed the application of Rule 45(c)’s geographical limitations to testimony provided via
  remote video transmission, which is a question of increasing
  import given the recent proliferation of such technology in
  judicial proceedings. Moreover, we conclude that despite
  changes in technology and professional norms, the rule
  governing the court’s subpoena power has not changed and
  does not except remote appearances from the geographical
  limitations on the power to compel a witness to appear and
  testify at trial. Because the bankruptcy court concluded
  otherwise, we grant the Kirklands’ petition and issue a writ
  of mandamus ordering the bankruptcy court to quash their
  trial subpoenas. See Cheney, 542 U.S. at 380."
  
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  - Thursday, October 16, 2025 4:04 PM | Peter Rundle
    
    Apologies for the poor formatting of the above cut & paste quote.
    
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Thursday, October 16, 2025 3:09 PM | Tom Bush

If a federal court would have jurisdiction to enforce the subpoena under FAA § 7, then the subpoena can be issued and enforced anywhere in the United States. Section 7 says that the court can enforce the subpoena in the same manner as subpoenas in court cases, and Fed R Civ. P. 45 provides for nationwide enforcement.

Most state arbitration laws authorize state courts to enforce arbitration subpoenas, but state courts can enforce compliance only within the state. Some state arbitration laws authorize the state courts to enforce subpoenas for out-of-state subpoenas, for example Section 17(g) of the Revised Uniform Arbitration Act. If the arbitration law of the state where the witness is located does not have such a provision, and many do not, then the subpoena cannot be enforced.

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Thursday, October 16, 2025 3:13 PM | Steven Skulnik

Schedule a special hearing where the witness is located and take the witness's testimony at that location. Where the merits hearing is remote, there is no subpoena power. Broumand v. Joseph, 522 F. Supp. 3d 8 (S.D.N.Y. 2021). So, schedule an in-person special hearing to take the witness's testimony.
Often, the witness will contact the lawyer who requested the subpoena and the lawyer can offer the witness the opportunity to testify remotely. Most witnesses would prefer to testify from their own home or office.

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- Thursday, October 16, 2025 7:58 PM | Tom Levak
  
  I tell the party to prepare, sign and serve the subpoena, but that I have no authority to compel appearance.
  
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Thursday, October 23, 2025 11:09 AM | George Davidson

A witness beyond the subpoena power was willing to travel to the hearing to testify only if given a subpoena, which the witness acknowledged would be unenforceable. Given that acknowledgement, a panel I chaired issued the subpoena.

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