Discovery to Nonparties in Colorado Arbitrations
| Publication year | 2016 |
| Pages | 25 |
Articles
Alternative Dispute Resolution
Discovery to Nonparties in Colorado Arbitrations
By Robert E. Benson, Judge
Alternative Dispute Resolution articles are sponsored by the CBA Alternative Dispute Resolution Section. They describe recent developments in the evolving field of ADR, with a particular focus on issues affecting Colorado attorneys and ADR providers.
Coordinating Editor
Marshall A. Snider, Denver—(303) 885-6659, msniderarb@comcast.net
About the Author
Robert E. Benson is of counsel with Holland & Hart LLP in Denver —RBenson@hollandhart.com.
This article summarizes the power to compel non parties by subpoena to produce documents and to submit to depositions for discovery purposes under the Colorado Revised Uniform Arbitration Act and the Federal Arbitration Act.
This article covers the ability of parties in arbitration under the Federal Arbitration Act (FAA), 9 USC §§ 1 et seq., and the Colorado Revised Uniform Arbitration Act (CRUAA), CRS §§ 13-22-201 et seq., to request that the arbitrator issue subpoenas directing prehearing discovery (depositions and document requests) to nonparties. It does not deal with compelling nonparties to appear as witnesses to testify and to produce documents at the arbitration hearing, although much of the applicable law is the same, nor does it address discovery to parties to the arbitration. When the power to compel discovery exists, the issues covered include the jurisdictional boundaries for discovery subpoenas, enforcement of discovery subpoenas, objections to discovery, court discovery, subpoenas in aid of arbitration, discovery under the Federal Rules of Civil Procedure (FRCP), and whether the FAA or the CRUAA applies.
This article emphasizes the decisions of the Colorado state courts, the U.S. District Court for the District of Colorado, the Tenth Circuit Court of Appeals, and the U.S. Supreme Court. However, because these courts have not answered most of the questions presented, particularly under the FAA, decisions of other courts are considered for guidance. As to the issues considered herein under the FAA, the court decisions in general are not consistent, providing limited guidance to practice in Colorado under the FAA.
The frequent need for parties in arbitration to discover facts and documents from non parties is apparent. Sometimes non parties voluntarily produce requested documents and provide factual information by interview or deposition; however, the compulsory subpoena process often is needed to obtain that discovery.
Arbitration is a dispute resolution process created through private contract between two or more parties. Parties cannot by their agreement require a non party to respond to discovery. Therefore, if a non party will not voluntarily respond to discovery requests, the legal basis for compelling discovery from the non party is the FAA, the CRUAA, or other applicable rule or statute.[1]
The Colorado legislature can provide a means for compelling a non party to respond to discovery requests in a private arbitration proceeding if the non party is a citizen or resident of Colorado, or perhaps if the nonparty is served in Colorado based on actions in Colorado. Congress also can so provide wherever the nonparty is located, at least if within the United States.
Discovery to Nonparties under Colorado Arbitration Law
CRS § 13-22-217 defines discovery under the CRUAA. Various Colorado rules of procedure govern certain aspects of discovery in arbitration proceedings.
CRUAA and the Rules
CRS § 13-22-217(3) empowers the arbitrator to permit discovery as he determines is appropriate, considering "the needs of the parties to the arbitration proceeding and other affected persons and the desirability of making the proceeding fair, expeditious, and cost effective." Because this section does not limit to whom the discovery may be directed, it includes non parties.[2]
CRS § 13-22-217(4) permits the arbitrator to issue discovery subpoenas to witnesses without limitation, and therefore includes subpoenas to non parties. Subsection (4) provides that the arbitrator may "take action against a non-complying party to the extent a court could take such action if the controversy were the subject of a civil action; except that the arbitrator shall not have the power of contempt." Read in conjunction with CRCP 37(b), the term "non-complying party" likely refers to any person or entity, not just a party to the arbitration, who does not comply with a subpoena.[3]
CRS § 13-22-217(6) provides that "[a]ll provisions of law that compel a person under a subpoena to testify ... as a witness shall apply to an arbitration proceeding in the same manner as if the controversy were the subject of a civil action." In addition, subsection (7) provides for judicial enforcement. CRS Chapter 13, Article 90 governs witnesses, and CRCP 45 covers procedures for subpoenas. Although courts have not considered whether the term "law" in subsection (6) includes rules of civil procedure, based on the plain wording of the statute, procedural rules are likely "law" for purposes of subsection (6).[4]
The scope of CRS Chapter 13, Article 90 includes
• who may[5] and may not testify (including privilege)[6]
• the deadman's statute[7]
• religious opinions[8]
• the power to enforce subpoenas[9]
• service of subpoenas.[10]
CRS § 13-22-217(6) probably makes most of CRCP 45 applicable to CRUAA subpoenas, specifically the provisions regarding the form and contents of subpoenas,[11] service of subpoenas,[12] protecting a person subject to a subpoena[13] (this may be superseded in part as to arbitration subpoenas by subsection 217(5), which provides for issuance of protective orders by arbitrators), duties in responding to a subpoena,[14] and subpoenas for deposition, including provisions concerning the place of examination for both residents and nonresidents of this state.[15]
Procedures for Issuance of a Discovery Subpoena to Nonparties
Only an arbitrator may issue a discovery subpoena under CRS § 13-22-217(3). Typically, the party requesting issuance of the subpoena prepares, signs, and submits the form to the arbitrator, with a copy to opposing counsel. If a party objects, the arbitrator must first resolve those objections. CRCP 4, which governs process, may be deemed in part incorporated under subsection (6), except to the extent that it is in conflict with the CRUAA; because the CRUAA requires the arbitrator to issue subpoenas, the Rule 4 procedure allowing an attorney to issue them is not applicable.
Rules 45(a)(1)(B) and (c)(2)(A) provide for subpoenas for documents only, without requiring a person to appear and give testimony. Given the wording of subsection 217(4), that an arbitrator may take such action "to the extent a court could take such action if the controversy were the subject of a civil action," it should incorporate this Rule 45 provision.
Form and Contents of the Discovery Subpoena to a Nonparty
The CRUAA does not define any requirements as to the form or contents of the subpoena. Under CRS § 13-22-217(6), the contents of the subpoena are as prescribed by CRCP 45(a)(1), Form and Contents. The wording must be modified slightly to reflect the arbitration forum, but the essential requirements of the rule should be followed. Complying with the rule should satisfy the arbitrator as to the substance and form of the subpoena, as well as fulfilling the subsection 217(6) requirements. The arbitrator may require that the subpoena state additional information, such as providing for objections to the subpoena or requests for protective orders.
Service of the Subpoena on Nonparties
Under CRS 13-22-217(1), a subpoena issued under section 217 "shall be served in the manner for service of subpoenas in a civil action." The attorney should also consult CRS § 13-90-115, which governs service of subpoenas. CRCP 45(b)(1)(C) requires that service be made by delivering a copy to the named person or "as otherwise ordered by the court consistent with due process." The rule does not address whether service may be "otherwise ordered" by the arbitrator or whether application must be made to a court. This provision presumably supersedes any general provisions in CRCP 4, but Rule 4 may also apply in part.
Fees and mileage.
CRS § 13-22-217(6) provides that all fees for attending a deposition or a discovery proceeding as a witness apply in an arbitration proceeding as if the controversy were the subject of a civil action in this state. Colorado law does not provide for witness fees. Mileage to be tendered to the subpoenaed nonparty is governed by CRS § 13-33-103(1), which provides for mileage in the same amount as for state officers and employees under CRS § 24-9-104.
Timing of service.
CRCP 45(b)(1)(B) states that subpoenas for depositions must be served not later than seven days prior to the deposition.
Proof of service.
Under CRS § 13-90-115 and CRCP 4, proof of service is made by affidavit of the person making the service.
Place of Service and Territorial-Jurisdictional Limits on a CRUAA Subpoena
The CRUAA does not define the territorial limits in which a subpoena may be served. CRS § 13-22-217(1) states, however, that service of a subpoena under section 217 shall be "in the manner for service of subpoenas in a civil action." Subsection 217(6) provides that the laws compelling a person under a subpoena to testify in a deposition or discovery proceeding as a witness apply to an arbitration proceeding in the same manner as if the controversy were the subject of a civil action. CRCP 45(b)(2) provides that service of subpoenas may be made anywhere within the state of Colorado.[16]
Place of Appearance by Nonparty for Deposition or Production of Documents
...
To continue reading
Request your trial