Sara Rosenberg


Since the early twentieth century, arbitration has been increasingly recognized by Congress and the courts as an efficient alternative to courtroom adjudication. The circuit courts of appeals differ in their interpretations of the third party discovery authority that the Federal Arbitration Act (FAA) grants to an arbitrator. The conflict among the circuits reveals a tension between the courts’ desire to uphold individual rights by treating arbitration agreements as private contracts and the desire to maintain arbitration as an efficient alternative to litigation. This Note surveys the unresolved circuit split and argues that, above all, it is imperative that the rules governing arbitration set forth clear default procedures for conducting discovery. The U.S. Courts of Appeals for the Fourth, Sixth, and Eighth Circuits assert that, in the interest of efficiency, the FAA authorizes an arbitrator to fully realize the rights of the contracting parties, including compelling prehearing document production from a third party. In contrast, the U.S. Courts of Appeals for the Second and Third Circuits, focusing on the plain meaning of the statute’s language, have held that an arbitrator may not compel a third party to produce documents prior to the arbitral hearing. Examining the issue in the context of the history and development of the FAA, this Note analyzes the arguments set forth in each Circuit and ultimately advocates that an arbitrator should be able to use his time most efficiently and with the aid of all documents relevant to the dispute.

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