Helene Tomasian, a non-party to an arbitration between Ware and C.D. Peacock, Inc., moved to quash an arbitrator’s subpoena compelling her attendance at a pre-hearing deposition. See Ware v. C.D. Peacock, Inc., No. 10-cv-2587 (N.D. Ill. 2010). The subpoena was issued at the request of Peacock after the arbitrator denied its motion for summary judgment based upon “in large part” the affidavit of Ms. Tomasian.

In granting Ms. Tomasian’s motion to quash, the district court noted that the U.S. Court of Appeals for the Seventh Circuit has yet to address whether the Federal Arbitration Act (“FAA”) permits an arbitrator to subpoena pre-hearing discovery from non-parties independent of the attendance of the non-party before the arbitrator, and whether federal district courts are authorized to enforce such subpoenas under § 7 of the FAA. The court further noted that circuit courts are split on the issue, with the Second, Third, and Fourth Circuits finding that § 7 does not empower arbitrators to compel such discovery, while the Eighth Circuit has taken the opposite view.

The district court found the Second and Third Circuits’ position to be the “better reasoned view of the statute” and thus held that “the plain language of Section 7 of the FAA does not authorize arbitrators to issue subpoenas for depositions of non-parties outside the physical presence of the arbitrator.” In so holding, the court noted that Section 7 contains no discovery exception for non-party witnesses deemed to be important to an arbitration, regardless of the alleged prejudice a party seeking discovery from the non-party may face.

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