Page 14 of your chosen ADR provider apply to your specific controversy, and what modifications to these rules the parties have (or can) mutually agree upon, perhaps the most important con- sideration of all is the selection of the arbitra- tor. For in the final analysis, it is in his or her experience, integrity, and discretion that your ability to conduct the level of discovery your case deserves will ultimately depend. *Robert A. Merring has been an arbitrator with the American Arbitration Association for over 25 years and is the principal of Merring ADR in Costa Mesa, California. He is a media- tor with the AAA and the U.S. District and Bankruptcy Courts for the Central District of California. He also serves as an arbitrator and mediator for the American Health Lawyers Association and the Orange County Superior Court and a hearing officer for the California Society for Healthcare Attorneys. 1 This work was based on an article that originally appeared in the Orange County Lawyer and has been substantially revised. Robert A. Merring Dis- covery in Contractual Arbitrations: What Do You Mean I Can’t Serve Interrogatories?, ORANGE COUN- TY LAWYER 18 (JUNE 2006). A more comprehensive version of this article, which includes a section on international arbitrations, originally appeared as a two-part series in the The Resolver, published by the Alternative Dispute Resolution Section of the Federal Bar Association, Winter 2017, page 18, and Fall 2017, page 14. Copies of these articles may be found on Mr. Merring’s website at www.merringADR.com. 2 Burton v. Bush, 614 F.2d 389, 390 (4th Cir. 1980) (citations omitted). 3 Compare Insurance Co. of America v. Duncanson & Holt, Inc., 228 F.3d 865, 870-71 (8th Cir. 2000) (“implicit in an arbitration panel’s power to subpoe- na relevant documents for production at a hearing (Continued from page 13) is the power to order the production of relevant documents for review by a party prior to the hear- ing”); American Federation of Television & Radio Artists, AFL-CIO v. WJBK-TV, 164 F.3d 1004, 1007 (6th Cir. 1999) with Hay Group, Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404, 410 (3rd Cir. 2004) (“Nowhere does the FAA grant an arbi- trator the authority to order non-parties to appear at depositions, or the authority to demand that non-parties provide the litigating parties with documents during pre-hearing discovery”), fol- lowed in Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549 F.2d 210 (2nd Cir. 2008); COMSAT Corp. v. National Science Foundation, 190 F.3d 269, 275 (4th Cir. 1999). See also In Re Integrity Insurance Co., in Liquidation v. Ameri- can Centennial Insurance Co., 885 F. Supp. 69, 71 (S.D.N.Y. 1995) (arbitration is a creation of con- tract voluntarily agreed to by the parties, and an “arbitrator does not have the authority to compel nonparty witnesses to appear for pre-arbitration depositions”). 4 CVS Health Corp. v. Vividus, LLC, 878 F.3d 703, 708 (9th Cir. 2017). 5 MARTIN DOMKE, GABRIEL WILNER & LARRY E. EDMONSON, 2 DOMKE ON COMMERCIAL ARBITRA- TION § 29.12 (3d ed. 2015). 6 In Dynegy Midstream Services, LP v. Trammo- chem, 451 F.3d 89, 94-95 (2nd Cir. 2006), the Sec- ond Circuit held that the federal jurisdictional limits do apply to arbitrations, while also ac- knowledging a gap in FAA § 7 by which arbitra- tors may issue subpoenas that no court can en- force. In Festus & Helen Stacy Foundation v. Mer- rill, Lynch, Pierce, Fenner & Smith, Inc., 432 F. Supp. 2d 1375, 1378-79 (N.D. Ga. 2006), the court found that they do not. It reasoned that Rule 45 applies only to subpoenas issued by a court, not to those by an arbitration panel, and also endorsed the course charted by the Eighth Circuit in Secu- rity Life Insurance, supra, 228 F.3d at 871, that “‘a subpoena for the production of documents need not comply with Rule 45(b)(2)’s territorial limit ‘because the burden of producing documents need not increase appreciably with an increase in the distance that those documents might travel’”). (Continued on page 15) Discovery in Arbitration FBA/OC