Arbitrators' Power to Issue Orders

An arbitrator may be requested to issue a subpoena directing the appearance of a witness and/or the production of documents. This request will be communicated to the arbitrator with the subpoena and any other relevant materials.

 

The arbitrators may also direct the appearance of a member or an employee of any member firm of an SRO and direct that a member or member firm produce any documents in its possession or control. Accordingly, arbitrators may consider using an Order of Production or Appearance in lieu of a subpoena if the party being directed to produce is a member or person associated with a member. Failure to honor an order of an arbitrator may subject a member or person associated with a member to disciplinary action.

 

The arbitrator should read all the materials supplied as well as the pleadings in the case before executing the subpoena. The arbitrator should consider the propriety and relevance of the materials requested as well as the timeliness of the subpoena request.It is the obligation of the party requesting a subpoena to serve it in accordance with the law. The person on whom the subpoena is served must have a reasonable opportunity to comply with or contest the subpoena.

 

An arbitrator may decline to issue a subpoena that he or she feels is inappropriate or which may unreasonably delay the hearing.

 

Subsequent to the issuance of a subpoena or order for the production of documents or information, the arbitrator(s) may be advised that the party to which the order was directed has not complied with its terms. Arbitrators have wide discretion in addressing such noncompliance. For example, the arbitrator(s) may draw an adverse inference against any party who did not comply with the order; assess adjournment fees, forum fees, or other costs and expenses, including attorneys' fees, caused by noncompliance; initiate a disciplinary referral in the instance of noncompliance by a member firm or associated person of a member firm; or take other appropriate action to expedite the proceedings or assist any party to develop fully its case. In extraordinary cases the arbitrators may dismiss a claim, defense, or proceeding with prejudice as a sanction for willful or intentional failure to comply with an order of the arbitrators, if lesser sanctions have proven ineffective. Prudent use of the discovery procedures is designed to reduce the prejudice to parties unable to obtain voluntary production of documents and information without imposing undue costs. Arbitrators should generally not allow parties to reargue the merits of the original order when resolving such compliance disputes.