2026 - Volume 2 - Summer - Flipbook - Page 7
-Third-Party Discovery: Continued from page 1-
tion under Cal. Civ. Proc. Code section 1283 for
use as evidence but not for purposes of discovery;
cuits have held that arbitrators generally do not have
authority to enforce third-party discovery subpoenas,
but the Eighth Circuit has held that arbitrators do have
such authority. Given the changing landscape in California law and circuit split among federal courts, there
will likely be further developments on arbitrator authority in enforcing third-party discovery subpoenas. Lawyers should carefully consider these developments
when advising clients on arbitration-related issues.
An arbitrator may compel attendance of witnesses
and production of documents for discovery only if
Cal. Civ. Proc. Code section 1283.05 applies.
Aixtron, 52 Cal. App. 5th at 396.
In McConnell v. Advantest Am., Inc., 92 Cal. App. 5th
596 (2023), the Fourth Appellate District agreed with the
limitations articulated in Aixtron. McConnell involved
an arbitration stemming from a business dispute between
a company and a former senior executive. The arbitration agreement did not incorporate section 1283.05, and
the company sought to compel production of documents
from third parties who had communications with the former executive. In an attempt to circumvent Aixtron’s
prohibition on discovery subpoenas, the arbitrator issued
subpoenas ordering the third parties to appear and produce documents at a hearing specially set for the
