2006/Vol. 5 No.1 - Hamline Law - Hamline University

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40 THE JOURNAL OF AMERICAN ARBITRATION [<strong>Vol</strong>. 5:1 books, records, documents and other evidence.” 157 Under the RUAA, “An arbitrator may issue a subpoena for the attendance of a witness for the production of records and other evidence at any hearing and may administer oaths.” 158 Under the Uniform Arbitration Act, “[a]ll laws compelling a person under subpoena to testify . . . apply to an arbitration proceeding as if the controversy were the subject of a civil action in this State.” 159 For example, the Uniform Arbitration Act of Minnesota provides that a subpoena may be “enforced, in the manner provided by law for the service and enforcement of subpoenas in a civil action.” 160 Section 7 of the Federal Arbitration Act provides for enforcement of subpoenas if the jurisdiction permits their use: [I]f any person or persons so summoned to testify shall refuse or neglect to obey said summons, upon petition the United States district court for the district in which such arbitrators, or a majority of them, are sitting may compel the attendance of such person or persons before said arbitrator or arbitrators, or punish said person or persons for contempt in the same manner provided by law for securing the attendance of witnesses or their punishment for neglect or refusal to attend in the courts of the United States. 161 C. Pre-Hearing Issues If there are issues relating to discovery, confidentiality, or difficult and contentious issues, it may be necessary to hold a pre-hearing conference. An extra hearing is contrary to the “economy” objective of arbitration. Arbitration is supposed to be quicker, more efficient, and less costly than a trial. However, a pre-hearing conference held weeks before the arbitration may be necessary to deal with difficult preliminary issues, “to specify the issues to be resolved [or] to stipulate uncontested facts,” 162 or to deal with myriad of disagreements which can arise prior 157. UNIFORM ARBITRATION ACT, § 17(a) (2000). 158. Id. 159. Id. § 17(f). 160. MINN. STAT. § 572.14 (2004). 161. 9 U.S.C. § 7 (2004); see Robert E. Benson, The Power of Arbitrators and Courts to Order Discovery in Arbitration—Part II, 25-MAR. COLO. LAW 35, 36-37 (Mar. 1996). 162. American Arbitration Association, Patent Arbitration Rules, R-9 (July 1, 2003), available at http://www.adr.org/sp.asp?id=26401 (last visited Dec. 8, 2005)
<strong>2006</strong>] ARBITRATION: THE BASICS 41 to the arbitration hearing. The American Arbitration Association recognizes that a preliminary hearing may be necessary, [T]he arbitrator may, at the preliminary hearing, establish (i) the extent of and schedule for the production of relevant documents and other information, (ii) the identification of any witnesses to be called and (iii) a schedule for further hearings to resolve the dispute. 163 The Pre-Hearing Conference might be held months, weeks, or days before the arbitration hearing. Confidentiality issues can arise during the pre-hearing phase. For example, in labor arbitration, one of the parties may be seeking private data protected by Government Data Practices laws. Many data practice laws in the U.S. give authority to arbitrators to issue subpoenas and hold hearings prior to an arbitration to determine if special protection needs to be given to the data. 164 [hereinafter AAA Patent Arbitration Rules]; see also AAA Rules, supra note 37, R- 20. 163. AAA Patent Arbitration Rules, supra note 162, R-9. 164. See, e.g., MINN. STAT. § 13.03, subd. 6 (2004). The Minnesota Statute states: If a state agency, political subdivision, or statewide system opposes discovery of government data or release of data pursuant to court order on the grounds that the data are classified as not public, the party that seeks access to the data may bring before the appropriate presiding judicial officer, arbitrator, or administrative law judge an action to compel discovery or an action in the nature of an action to compel discovery. The presiding officer shall first decide whether the data are discoverable or releasable pursuant to the rules of evidence and of criminal, civil, or administrative procedure appropriate to the action. If the data are discoverable the presiding officer shall decide whether the benefit to the party seeking access to the data outweighs any harm to the confidentiality interests of the agency maintaining the data, or of any person who has provided the data or who is the subject of the data, or to the privacy interest of an individual identified in the data. In making the decision, the presiding officer shall consider whether notice to the subject of the data is warranted and, if warranted, what type of notice must be given. The presiding officer may fashion and issue any protective orders necessary to assure proper handling of the data by the parties. If the data are a videotape of a child victim or alleged victim alleging, explaining, denying, or describing an act of physical or sexual abuse, the presiding officer shall consider the provisions of section 611A.90, subdivision 2, paragraph (b). Id.; see, e.g., CAL. CIV. CODE § 56.10(b)(5) (2004). The California Code provides that: A provider of health care, a health care service plan, or a contractor shall disclose
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2006/Vol. 5 No.1 - Hamline Law - Hamline University

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