State of New York
Supreme Court : County of Monroe

- against -

Index No. 2000/6929

ANDREW V. SIRACUSE, J.

The issue in this case is the scope of the subpoena power of an attorney in an arbitration. The underlying dispute between these parties *** is under arbitration ***. The rules under which the arbitration is being held provide that counsel and arbitrators "shall have the power of the subpoena as provided by law" (10322 [a]) and also contemplate extensive pre-hearing discovery (10321).

In the course of the discovery [petitioner] was asked to provide financial information, including her tax returns; she responded that most of this documentation was not in her possession, but in the hands of her accountants and others. Respondents then issued subpoenas to obtain these documents.

Petitioner argues that the subpoenas are overbroad, seek undiscoverable documents, and--most importantly--that they are returnable at a date other than the hearing date. According to the petitioner, the subpoena power in the two CPLR sections referred to in the subpoena (2302 [a] and 7505) authorize only subpoenas to appear at the hearing itself. The only way pre-hearing discovery can be had through subpoena is via court order under CPLR 3102(c). By circumventing this provision, petitioner argues that respondents' counsel have committed sanctionable conduct.

In a further submission, faxed to the court on the day before special term, petitioner argues that the subpoenas are actually subpoenas duces tecum, which "may only legitimately be obtained by court order, pursuant to CPLR 3120 (b)." Further, she claims that the language of the subpoenas suggest testimony before the arbitrators, where such was never contemplated.

Respondents argue, first of all, that this proceeding is premature, as no application to quash has been made to the arbitrators themselves. The petitioner submits that, by authority of Cotter v Shearson Lehman & Hutton (145 Misc 2d 235), she was required to choose between arbitral or judicial remedies.

That case, however, is not on point; it dealt with the possible judicial enforcement of subpoenas, conceded to be proper, issued in the course of an arbitration, where the arbitrator had declined to enforce the subpoenas. The court ruled that, in deference to the arbitrator's decision and because the judicial and arbitral procedures were parallel, resort to one remedy precluded resort to the other.

In the present case, however, the claim is that the subpoenas themselves are illegal and improper, and go beyond the authority found in statute and the arbitration agreement and rules; and thus that it is a violation of the arbitration agreement itself to permit them. If this argument is correct, the approval of such an ultra vires act by an arbitrator may conceivably be reviewable in court, as a failure of an arbitrator to follow its own procedures and rules.

The court finds that this question is indeed more properly brought before the arbitrators, and declines jurisdiction over this matter on those grounds. In addition, matters of form and relevancy are not reviewable at all by the court; assuming a subpoena is within the power of the issuer such questions are to be brought before the arbitrator. Only the extent of the subpoena power itself may be reviewed.

This determination resolves the case, but in the hopes of avoiding further litigation, the court wishes to discuss the substantive question. It finds the petitioner's argument unconvincing in the extreme, and dependent on very questionable readings of the CPLR. The first CPLR section referred to by petitioner, § 3102 (c), regulates pre-action discovery, and is inapplicable in this situation. This may technically be a pre-action matter from a Supreme Court point of view, but it not from the arbitrators'; the subpoena power possessed by the respondents' counsel is that which an attorney has in the discovery phase of a civil proceeding, where there is no doubt that a subpoena may be issued to secure testimony or document production (CPLR 3106 [b]).

The CPLR section cited in petitioner's letter of July 26 is even less to the point; CPLR 3120 (b) governs the production of documents and materials for inspection and testing, not subpoenas duces tecum. The court can make no sense of petitioner's claim that a subpoena duces tecum "may only legitimately be obtained by court order". To the best of the court's knowledge, no attorney from petitioner's counsel's firm has ever applied for such an order, nor has any other attorney. The practice in this state is and has always been that such subpoenas are issued by attorneys. In addition, it is customary for such subpoenas to give a return date and time and state that the subpoenas require testimony before a session of the court on that date. These are terms of art, misleading to lay people, no doubt, and perhaps better omitted; but they do not in fact require attendance at that time and date, do not refer to an actual court session, and do not render the subpoena invalid or subject the issuer to sanctions.

Thus, if the counsel to an arbitration are entitled to discovery--which they are--and they have the subpoena power--which they do--they have the power to subpoena non-party witnesses and obtain documents, as they have here. Since a court's only concern in regulating arbitrations is the fundamental legality of the process, it should look no farther.

The proceeding is dismissed, as premature, with costs. Counsel for respondents should prepare the order.

DATED: Rochester, New York

July 26, 2000

Andrew V. Siracuse, J.S.C.

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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