Arbitral Discovery of Non-Parties

The discovery of relevant information is a vital part of arbitration, as it is with any dispute resolution process.  Parties in arbitration need to gather the relevant information to present their best case to the arbitrator.  Access to the relevant information enables the arbitrator to better render a just decision.  The Federal Arbitration Act (FAA),  which authorizes specific enforcement of arbitration agreements,  also contains language dealing with the power of arbitrators to order discovery.   This language gives force to the arbitrator’s discovery orders, whereas otherwise there would be none. 

The federal courts are, however, split regarding the scope of these powers when one party seeks discovery of a non-party.   Some courts have limited arbitrators’ power to compel non-party participation to the actual hearing.  Other courts give arbitrators broad discovery powers, including the ability to compel non-parties to participate in pre-hearing discovery. 

This article argues that the broad power approach is the better reasoned of the two.  Timely discovery of important information is vital in any dispute.  Further, fair results should be the goal of any dispute resolution process.  The possessor of the pertinent information, i.e., whether it is held by parties or non-parties, therefore should be irrelevant.