Non-Party Subpoenas in Texas Courts and Arbitration
So you are embroiled in arbitration or litigation but the key non-party witness is located outside of subpoena range or across the Texas state line. Now what? Non-party discovery in Texas state court or in arbitration can be expensive, time-consuming, or not available at all. To avoid the need for reading this article, first determine if your non-party witness is friendly and will work with you without the need for a subpoena. Not friendly? Read on.
Out-of-State Discovery for a Texas Lawsuit
Because there is no uniformity among state courts, seeking this discovery will necessitate looking at both Texas procedure and the procedure of the state where the action is pending. (Few states have adopted the Uniform Foreign Depositions Act.) Under TEX. R. CIV. P. 201.1(a), Texas allows such depositions through a notice, letter rogatory or “other such device,” among other things, but the other state may limit what it will recognize from Texas. First, determine what the other state requires. That could be, among other things, a letter rogatory or commission, a deposition notice filed with the Court or the filing of an ancillary action. Contacting the court clerks in the sister state is often helpful. (A good resource for contact information is www.ncsconline.org/D_KIS/info_court_web_sites.html.) Then, if needed, file a motion with the Texas court requesting it to grant relief in the form required by the other state.
Discovery in Texas for an Out-of-State Lawsuit
Seeking non-party discovery in Texas also requires close examination of the procedural rules of Texas and the other state involved. Texas courts recognize a “mandate, writ, or commission” from another state for depositions of witnesses in Texas. TEX. R. CIV. P. 201.2; TEX. CIV. PRAC. REM. CODE § 20.002. Obtain the commission detailing exactly what form of discovery is needed from the state where the action is pending. Then file an ancillary lawsuit in Texas (commonly enti-tled a “Suit to Perpetuate Testimony in Out-of-State Action”) attaching the commission. A Texas subpoena may then be issued under the caption of that ancillary Texas action. The Texas court may now be petitioned for assistance obtaining compliance with the subpoena. Contacting the applicable Texas court clerk may provide additional information on procedural variations. (The Clerks of Texas Courts website provides contact information at www.txlaw.org/clerks.html.)
Pre-Hearing Discovery Under the Federal Arbitration Act
Under the FAA, arbitrators are empowered to summon “any person” as a witness and request documents which may be deemed material as evidence in the case. The summons “shall be served in the same manner as subpoenas to appear and testify before the court.” 9 U.S.C. § 7. Arbitrator subpoenas may be enforced by a Fed-eral district court where the arbitrators are located. This creates a jurisdictional gap when the non-party is located more than 100 miles from the arbitrators. FED. R. CIV. P. 45(b)(2). Federal circuit courts disagree on whether pre-hearing subpoenas falling within this gap may be enforced. Compare Dynegy Midstream Serv., LP v. Trammo-chem, 451 F.3d 89, 96 (2d Cir. 2006) (no jurisdiction) with In re Security Life Ins. Co. of Am., 228 F.3d 865 (8th Cir. 2000) (implicit power). The Fifth Circuit apparently has not decided this issue. To avoid this quagmire, consider the impact of non-party discovery when selecting the location of the arbitration and arbitrators and the arbitration provider. For example, some argue that JAMS Rule 21(b) fills that gap.
Pre-Hearing Discovery Under the Texas Arbitration Act
The TAA specifically provides for pre-hearing discovery in arbitration. TEX. CIV. PRAC. & REM. CODE § 171.051. Unfortunately, it is unclear how to get that discovery if the witness is more than 150 miles from the arbitration location. TEX. R. CIV. P. 176.3(a). If the witness is in Texas but outside the 150-mile bubble, then you may need to file an ancillary action (as described above) in the Texas district where the witness resides, based on your arbitrator-issued subpoena, and then serve a subpoena with that caption. If the witness is out-of-state and that state will not enforce an arbitrator-issued subpoena, file an ancillary action where the arbitration is pending, attaching your arbitrator-issued subpoena, request a commission (or whatever is required by the sister state), and then follow any additional requirements of the witness’s state.
Aimée Johnson is a Senior Associate at Fulbright & Jaworski L.L.P. She dedicates her practice to complex commercial litigation and arbitration and is a member of the Litigation Section of the Dallas Bar.