Contrary to what many construction contractors and owners may believe, construction arbitration often involves substantial document production. This may include production of documents from third parties not directly involved in the arbitration. The question often arises as to whether an arbitrator can compel production of documents from a third party prior to a hearing. Various Federal Circuit Courts of Appeal have reached different conclusions on this question.
Saul Ewing Arnstein & Lehr construction attorney Sunu Pillai recently authored an article in the American Bar Association Section of Litigation’s ADR Committee Newsletter addressing the divergent opinions on whether an arbitrator holds the right to compel a third party to produce documents prior to an arbitration hearing. The Second, Third and Ninth Circuit Court of Appeal hold that an arbitrator’s power to compel production of documents from a third party is limited to production at an arbitration hearing. However, the Eighth Circuit allows arbitrators to order production of documents prior to a hearing, while the Fourth Circuit allows prehearing document production only under certain circumstances. Irrespective of whether documents can be compelled for production prior to a hearing, an arbitrator has the right under Section 7 of the Federal Arbitration Act to compel a third party to produce documents at a hearing.
While there are disagreements among the federal circuits over the timing of when a third party can be compelled to produce documents in an arbitration case, it is clear that construction contractors and owners can be compelled to produce documents in such a case, even when the contractor or owner is not a party to the arbitration. Likewise, in construction arbitration cases in which owners and/or contractors may be parties, they have the ability to cause third parties to produce documents.
For guidance on construction arbitration matters, please contact the author, Sunu Pillai, or any other member of Saul Ewing Arnstein & Lehr’s construction practice group.