His Article Appears in The July 2018 Edition Of The Orange County Lawyer.
On December 25, 2017, contributor Marc posted on CVS Health Corp. v. Vividus, LLC, 878 F.3d 703 (9th Cir. 2017), where the Ninth Circuit Court of Appeals held, based on a reading of the "plain meaning" of the Federal Arbitration Act, specifically, 9 U.S.C. section 7 that: "[T]he FAA does not grant arbitrators the power to order third parties to produce documents prior to an arbitration hearing.” This holding squarely conflicts with an Eighth Circuit decision to the contrary. (Life Ins. Co. of Am. V. Duncanson & Holt, 228 F.3d 865 (8th Cir. 2000).) Read Marc's December 25, 2017 post here.
Contributor Marc, in an article entitled “Arbitration and Third-Party Document Discovery Before a Hearing: A Problem In Search of a Solution” and published in the July 2018 edition of the Orange County Lawyer magazine, explores the ramification of CVS Health Corp. and proposes these possible legislative “fixes” to the issue (singularly, in combination, or in the aggregate) with respect to arbitrators allowing pre-hearing third-party document discovery:
- The FAA could prohibit third-party document production before hearing outright in cases of a specified smaller monetary threshold;
- The party seeking third-party documents prior to a hearing could be made to bear the costs;
- The party seeking third-party documents prior to a hearing could be required to make the documents it receives available to other parties in the arbitration;
- In considering whether to allow pre-hearing discovery of third-party documents, the arbitrator could consider the “proportionality” factors set forth in Federal Rule of Civil Procedure 26(b);
- Third-party document discovery could be limited only to document production which would be deemed material evidence in the case; and
- The district judges could remain available as a forum to address an unduly burdensome subpoena issued by arbitrators.
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