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Witness and Subpoena Range

Wednesday, August 13, 2025 4:26 PM | Anonymous


You've Been Subpoenaed… Now What? | Edelson Foord Law

If an arbitration clause specifies the hearing location and allows it to be changed only upon mutual consent, may a panel meet in a different location in order to hear a witness who is beyond the subpoena range of the designated hearing location? 

What are your thoughts?

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  • Wednesday, August 13, 2025 4:49 PM | Steven Skulnik
    Yes. The taking of evidence from a witness and the holding of a merits hearing are not the same thing. The specification of the hearing locale simply does not speak to evidence gathering.
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    • Wednesday, August 13, 2025 4:55 PM | Denise Presley
      Agree ... also state rules of civil procedure where the subpeona'd witness is located may govern testimony locale issues.
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  • Wednesday, August 13, 2025 4:55 PM | Robbie MacPherson
    I would not do so without seeing briefing and hearing arguments from counsel. There is law in some Circuits that witnesses can only be directed by subpoena to appear at a 'hearing". Would meeting in another location run afoul of that ?
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    • Wednesday, August 13, 2025 5:20 PM | Jason Brown
      I would only do so if both parties consent.
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    • Wednesday, August 13, 2025 5:25 PM | Raoul Drapeau
      Comment deleted
      Link
      • Wednesday, August 13, 2025 6:08 PM | Tom Levak
        Not without mutual consent.
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    • Thursday, August 14, 2025 5:01 AM | Geoffrey BH
      I believe only the USA (FedAA 1925) gives Arbitrators powers akin to subpœna. In other nation states the power of a Court of Competent Jurisdiction may be invoked to assist Arbitration elsewhere. The Seat and the place of hearing are irrelevant. Practicality may be an issue. Arguably, it may be possible, with the consent of the Parties, to appoint a Rapporteur (who may be a relevant Expert) to investigate or hear evidence. I have heard evidence in India at the instruction of an Arbitral Tribunal sitting in Switzerland. Neither Party's Counsel wished to question me about my Report.
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    • Thursday, August 14, 2025 5:06 AM | Geoffrey BH
      I believe only the USA (FedAA 1925) gives Arbitrators powers akin to subpœna. In other nation states the power of a Court of Competent Jurisdiction may be invoked to assist Arbitration elsewhere. The Seat and the place of hearing are irrelevant. Practicality may be an issue. Arguably, it may be possible, with the consent of the Parties, to appoint a Rapporteur (who may be a relevant Expert) to investigate or hear evidence. I have heard evidence in India at the instruction of an Arbitral Tribunal sitting in Switzerland. Neither Party's Counsel wished to question me about my Report.
      Link  •  Reply
    • Thursday, August 14, 2025 4:21 PM | Anonymous
      I think I agree with this. Some jurisdictions require the hearing to take place within its jurisdictional limits (ie specific state) or they can be challenged. I would think a party could argue that taking such testimony is equivalent to not conducting the hearing within the appropriate jurisdiction.
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  • Wednesday, August 13, 2025 6:25 PM | Michael Orfield
    Moving would effectively nullify the mutual consent clause and risk the independence of the panel.
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  • Wednesday, August 13, 2025 7:05 PM | RB
    As part of the hearing, the panel cannot meet at a location other than that agreed upon that location mutually agreed upon.
    If the testimony is purely a deposition, then that is not part of the hearing and can take place at any location. The panel is not present as occurs in the hearing.
    As a practical matter, the panel can encourage mutual agreement on a different location for a part of a hearing.
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  • Wednesday, August 13, 2025 11:56 PM | Chris Helmer
    It seems something could be set up, through the local court if necessary, to take the witness's testimony remotely. The panel should have the power to order that, and the panel and counsel and the parties would not have to leave the chosen venue. This is always an issue in arbitration where a witness is beyond subpoena power. One's only recourse is to take the witness's testimony where it is located, and specify that that is a part of the hearing, even if done at a different time than the remainder of the hearing. If that could not be done for some reason, I think a good argument could be made that taking one witness in a different place, and doing the entire hearing where agreed, as running afoul of the arbitration clause.
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    • Thursday, August 14, 2025 10:12 AM | Doris Dabrowski
      If the 3d party witness is allowed to testify before the arbitrators by videoconference, is a subpoena enforceable if the witness' location is more than 100 miles away from the physical location of the hearing? Should arbitrators sign a subpoena even if it may not be enforceable?
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  • Thursday, August 14, 2025 10:20 AM | David E. Robbins
    No problem - Have the witness appear by Zoom with the arbitrators and parties in the agreed upon hearing location.
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    • Thursday, August 14, 2025 5:40 PM | Frank Burke
      On 1/1/25 California started allowing subpoenas for deposition witnesses. Recently practitioners have asked me to sign subpoenas for out of state witnesses, and I have had to tell them that they must follow the Interstate Depositions and Discovery Act which requires the subpoena to be filed in the local court where the witness resides, which they have done. Waiting to learn the outcome whether the witnes challenges the subpoena or shows up.
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  • Thursday, August 14, 2025 11:44 PM | Edwin H. Stern
    Mutual consent would be required to take testimony other than at a location where the hearing is authorized by the governing agreement. But I believe that taking testimony by Zoom or Face Time of a witness in another State during a hearing in an authorized forum state would be authorized because the hearing would still be an authorized location. And if for some reason that cannot be accomplished,, I might consider the lack of consent to provide an adverse inference.
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