No. 03-1161/1162 HAY GROUP, INC v. E.b.s. Acquisition Corp. Et Al, Pricewaterhousecoopers L.l.p

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
____________
No. 03-1161/1162
____________
HAY GROUP, INC.
v.
E.B.S. ACQUISITION CORP. ET AL,
PRICEWATERHOUSECOOPERS
L.L.P.
Appellants
____________________
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
District Court Judge: Honorable Mary A.
McLaughlin
(D.C. No. 02-MC-252, 253
(consolidated))
____________________
Argued: September 15, 2003
Before: ALITO, AMBRO, and
CHERTOFF, Circuit Judges
(Opinion Filed: March 12, 2004)
KEVIN M. TOTH
Reed Smith L.L.P.
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
PETER C. WOODFORD (argued)
CHRISTOPHER E. PAETSCH
SEYFARTH SHAW
55 East Monroe Street
Suite 4200
Chicago, Illinois 60603
Counsel for Appellant,
PriceWaterhouseCoopers, L.L.P.
MARY J. HACKETT
Reed Smith, L.L.P.
435 Sixth Avenue
Pittsburgh, PA 15230
KEVIN M. TOTH
Reed Smith L.L.P.
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
Counsel for Appellant,
E.B.S. Acquisition Corp.
NICHOLAS SANSERVINO, Jr. (argued)
WILLIS J. GOLDSMITH
SARA B. McCLURE
Jones Day
51 Louisiana Avenue, N.W.
Washington, D.C. 20001-2113
Counsel for Appellee
____________________

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OPINION OF THE COURT
____________________
ALITO, Circuit Judge:
PriceWaterhouseCoopers (“PwC”)
and E.B.S., non-parties to an arbitration,
seek to avoid compliance with an
arbitration panel’s subpoena requiring
them to turn over documents prior to the
panel’s hearing. The District Court
enforced the subpoena. We reverse.
I.
Hay Group (“Hay”) is a
management consulting firm. David A.
Hoffrichter left Hay’s employment and
joined PwC in September 1999. In early
2002, PwC sold the division employing
Hoffrichter to E.B.S.
Hoffrichter’s separation agreement
from Hay contained a clause that forbade
him from soliciting any of Hay’s
employees or clients for one year. The
agreement further provided for arbitration
to resolve any dispute arising under the
agreement. In February 2000, Hay
commenced such an arbitration proceeding
in Philadelphia, Pennsylvania, against
Hoffrichter, claiming that he had violated
the non-solicitation clause.
In an attempt to obtain information
for the arbitration, Hay served subpoenas
for documents on E.B.S. at its Pittsburgh
office and on PwC at its Philadelphia
office. Hay sought to have the documents
produced prior to the panel’s arbitration
hearing. PwC and E.B.S. objected to these
subpoenas, but the arbitration panel
disagreed. When PwC and E.B.S. still
refused to comply with the subpoenas, Hay
asked the United States District Court for
the Eastern District of Pennsylvania to
enforce the subpoenas. PwC and E.B.S.
again objected, claiming, among other
things, that the Federal Arbitration Act
(“FAA”) did not authorize the panel to
issue subpoenas to non-parties for pre-
hearing document production and that the
Federal Rules of Civil Procedure
prohibited the District Court from
enforcing a subpoena on a non-party for
documents outside the Court’s territorial
jurisdiction.
In November 2002, the District
Court issued a decision enforcing the
subpoenas and ordering the parties to
resolve any remaining differences. In
doing so, the District Court accepted the
view of the Eighth Circuit and several
district courts that the FAA authorizes
arbitration panels to issue subpoenas on
non-parties for pre-hearing document
production. The District Court also held
that even under the view of the Fourth
Circuit, which permits such production
only when there is a “special need,” the
panel’s subpoenas would be valid. In
addition, the District Court held that it had
the power to enforce subpoenas on non-
parties for document production even if
the documents were located outside the
territory within which the court’s
subpoenas could be served.

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3
PwC and E.B.S. then filed the
present appeal. The District Court denied
their motion to stay its order pending
appeal, but our Court granted their
emergency motion for a stay.
II.
A.
On appeal, PwC and E.B.S. first
argue that, under Section 7 of the FAA, 9
U.S.C. § 7, a non-party witness may be
compelled to bring documents to an
arbitration proceeding but may not simply
be subpoenaed to produce documents. We
agree.
An arbitrator’s authority over
parties that are not contractually bound by
the arbitration agreement is strictly limited
to that granted by the Federal Arbitration
Act. See, e.g., Legion Insurance
Company v. John Hancock Mutual Life
Ins. Co., No. 01-162, 2001 WL 1159852,
2001 U.S. Dist. LEXIS 15911 at *3 (E.D.
Pa. Sept. 5, 2001)(“It is clear, and
undisputed, that the cited statute is the only
source of the authority for the validity and
enforceability of the arbitrators’ subpoena
[over a nonparty]”); Integrity Ins. Co., in
Liquidation, v. Am. Centennial Ins. Co.,
885 F. Supp. 6 9, 71 (S.D .N.Y .
1995)(“Because the parties to a contract
cannot bind nonparties, they certainly
cannot grant such authority to an
arbitrator. Thus, an arbitrator’s power
over nonparties derives solely from the
FAA.”). Accordingly, we must look to the
FAA to determine whether an arbitrator
may issue a subpoena requiring pre-
hearing document production by a person
or entity that is not bound by the
arbitration agreement (hereinafter a “non-
party”).
In interpreting a statute, we must, of
course, begin with the text. “The Supreme
Court has repeatedly explained that
recourse to legislative history or
underlying legislative intent is unnecessary
when a statute’s text is clear and does not
lead to an absurd result.” United States ex
rel. Mistick PBT v. Housing Authority of
City of Pittsburgh, 186 F.3d 376, 395 (3d
Cir. 1999). Furthermore, a court’s policy
preferences cannot override the clear
meaning of a statute’s text. See Eaves v.
County of Cape May, 239 F.3d 527, 531-
32 (3d Cir. 2000)(“We do not find the
reasoning of the courts adopting the
‘majority view’ persuasive, because they
ignore a textual analysis of § 1961(a) and,
instead, base their result on policies they
find to underlie post-judgment interest and
attorney's fee awards.”)
Section 7 of the FAA provides as
follows:
The arbitrators selected
either as prescribed in this
title [9 U.S.C. §§ 1 et seq.]
or otherwise, or a majority
of them, may summon in
writing any person to
attend before them or any
of them as a witness and in
a proper case to bring with
him or them any book,

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record, document or paper
which may be deemed
material as evidence in the
case. The fees for such
attendance shall be the same
as the fees of witnesses
before masters of the United
S t a t e s c o u r t s . S a id
summons shall issue in the
name of the arbitrator or
arbitrators, or a majority of
them, and shall be directed
to the said person and shall
be served in the same
manner as subpoenas to
appear and testify before
the court; if any person or
persons so summoned to
testify shall refuse or
neglect to obey said
summons, upon petition to
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 as provided by law
for securing the attendance
of witn esses o r their
punishment for neglect or
refusal to attend in the
courts of the United States.
9 U.S.C.§ 7 (emphasis added).
T h i s l a n g u a g e s p e a k s
unambiguously to the issue before us. The
only power conferred on arbitrators with
respect to the production of documents by
a non-party is the power to summon a non-
party “to attend before them or any of
them as a witness and in a proper case to
bring with him or them any book, record,
document or paper which may be deemed
material as evidence in the case.” 9 U.S.C.
§ 7(emphasis added). The power to
require a non-party “to bring” items “with
him” clearly applies only to situations in
which the non-party accompanies the items
to the arbitration proceeding, not to
situations in which the items are simply
sent or brought by a courier. In addition,
the use of the word “and” makes it clear
that a non-party may be compelled “to
bring” items “with him” only when the
non-party is summoned “to attend before
[the arbitrator] as a witness.” Thus,
Section 7's language unambiguously
restricts an arbitrator’s subpoena power to
situations in which the non-party has been
called to appear in the physical presence of
the arbitrator and to hand over the
documents at that time.1
1Some states have recently adopted
versions of the Uniform Arbitration Act,
which differs from the Federal
Arbitration Act. Some of these state
statutes explicitly grant arbitrators the
power to issue pre-hearing document
production subpoenas on third parties.
See, e.g., 10 Del. Code §5708(a)
(2003)(“The arbitrators may compel the
attendance of witnesses and the

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This interpretation is supported by
the interpretation of similar language in a
previous version of Federal Rule of Civil
Procedure 45. From its adoption in 1937
until its amendment in 1991, Rule 45 did
not allow federal courts to issue pre-
hearing document subpoenas on non-
parties. This restriction was based on a
reading of the first two paragraphs of the
rule, which provided as follows:
(a) For Attendance of
W i t n e s s e s ; F o r m ;
Issuance. Every subpoena
shall be issued by the clerk
under the seal of the court,
shall state the name of the
court and the title of the
action, and shall command
each person to whom it is
directed to attend and give
testimony at a time and
place therein specified. The
clerk shall issue a subpoena,
or a subpoena for the
production of documentary
evidence, signed and sealed
but otherwise in blank, to a
party requesting it, who
shall fill it in before service.
(b) For Production of
Documentary Evidence. A
subpoenamay alsocommand thepersontowhom it
is directed to produce th e
b o o k s ,
p a p e r s ,
documents, or
t a n g i b l e
t h i n g s
d e s i g n a t e d
therein; but
t h e c o u r t ,
upon motion
m a d e
promptly and
in any event
at or before
t h e t i m e
specified in
the subpoena
f o r
c o m p l i a n c e
t h e r e w i t h ,
may (1) quash
or modify the
subpoena if it
i s
unreasonable
a n d
oppressive or
(2) condition
denial of the
motion upon
t h e
production of books, records, contracts,
papers, accounts, and all other
documents and evidence, and shall have
the power to administer oaths.”); 42
Pa.C.S.A. § 7309 (“The arbitrators may
issue subpoenas in the form prescribed
by general rules for the attendance of
witnesses and for the production of
books, records, documents and other
evidence.”) The language of these state
statutes clearly shows how a law can give
authority to an arbitrator to issue pre-
hearing document-production orders on
third parties.

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advancement
by the person
i n w h o s e
b e h a l f t h e
subpoena is
issued of the
r e a s o n a b l e
c o s t o f
producing the
books, papers,
documents, or
t a n g i b l e
things.
Fed. R. Civ. Proc. 45 (1990)(emphasis
added).
Under this version of Rule 45(a), a
subpoena was required to command the
person to whom it was directed “to attend
and give testimony.” The court could then
add a requirement that the subpoenaed
witness bring documents with him. See
Fed. R. Civ. Proc. 45(b). The accepted
view was that nothing in Rule 45 gave the
court the power to issue documents-only
subpoenas to non-parties. See Fed. R. Civ.
P. 45, Committee Notes, 1991 Amendment
Subdivision (a)(“Fourth, Paragraph (a)(1)
authorizes the issuance of a subpoena to
compel a nonparty to produce evidence
independent of any deposition. This
revision spares the necessity of a
deposition of the custodian of evidentiary
material required to be produced.”);
Turner v. Parsons, 596 F.Supp. 185, 186
(E.D. Pa. 1984)(“Certainly, this rule
permits a non-party to be subpoenaed for a
deposition. Additionally, this non-party
can be required to bring certain documents
to a deposition. Nowhere in the rule is it
stated that documents can be subpoenaed
alone, that is, without requesting their
production in conjunction with a
deposition or trial”); 139 F.R.D. 197, 205-
206 (“Under the new Rule 45, a subpoena
duces tecum seeking the production of
documents (or other materials) from a
nonparty may be used independently of the
regular testimonial subpoena; the two are
no longer wedded, as they were under the
prior version of Rule 45.”).
Some courts have argued that the
language of Section 7 implies the power to
issue such pre-hearing subpoenas. See In
re Security Life Insurance Co. of America,
228 F.3d 865, 870-71 (8th Cir. 2000)(“We
thus hold that implicit in an arbitration
panel’s power to subpoena relevant
documents for production at a hearing is
the power to order the production of
relevant documents for review by a party
prior to the hearing.”); Meadows
Indemnity Co., Ltd. v. Nutmeg Insurance
Co., 157 F.R.D. 42, 45 (M.D. Tenn.
1994)(“The power of the panel to compel
production of documents from third-
parties for the purposes of a hearing
implicitly authorizes the lesser power to
compel such documents for arbitration
purposes prior to a hearing.”).
We disagree with this power-by-
implication analysis. By conferring the
power to compel a non-party witness to
bring items to an arbitration proceeding
while saying nothing about the power
simply to compel the production of items
without summoning the custodian to

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testify, the FAA implicitly withholds the
latter power. If the FAA had been meant
to confer the latter, broader power, we
believe that the drafters would have said
so, and they would have then had no need
to spell out the more limited power to
compel a non-party witness to bring items
with him to an arbitration proceeding. As
mentioned above, until its amendment in
1991, Rule 45 of the Federal Rules of
Civil Procedure was framed in terms quite
similar to Section 7 of the FAA, but courts
did not infer that, just because they could
compel a non-party witness to bring items
with him, they could also require a non-
party simply to produce items without
being subpoenaed to testify.
Since the text of Section 7 of the
FAA is straightforward, we must see if the
result is absurd. See United States ex rel.
Mistick PBT, 186 F.3d at 395. We
conclude that it is not. Indeed, we believe
that a reasonable argument can be made
that a literal reading of Section 7 actually
furthers arbitration’s goal of “resolving
disputes in a timely and cost efficient
manner.” Painewebber Inc. v. Hofmann,
984 F.2d 1372, 1380 (3d Cir. 1993). First,
as noted above, until 1991 the Federal
Rules of Civil Procedure themselves did
not permit a federal court to compel pre-
hearing document production by non-
parties. That the federal courts were left
for decades to operate with this limitation
of their subpoena power strongly suggests
that the result produced by interpreting
Section 7 of the FAA as embodying a
similar limitation is not absurd. Second, it
is not absurd to read the FAA as
circumscribing an arbitration panel’s
power to affect those who did not agree to
its jurisdiction. See Legion Ins. Co. 2001
U.S. Dist. LEXIS 15911 at *4 (“the
authority of arbitrators with respect to non-
parties who have never agreed to be
involved in arbitration is severely
limited”). The requirement that document
production be made at an actual hearing
may, in the long run, discourage the
issuance of large-scale subpoenas upon
non-parties. This is so because parties that
consider obtaining such a subpoena will be
forced to consider whether the documents
are important enough to justify the time,
money, and effort that the subpoenaing
parties will be required to expend if an
actual appearance before an arbitrator is
needed. Under a system of pre-hearing
document production, by contrast, there is
less incentive to limit the scope of
discovery and more incentive to engage in
fishing expeditions that undermine some
of the advantages of the supposedly
shorter and cheaper system of arbitration.
See COMSAT Corp. v. Natl. Science
Foundation, 190 F.3d at 269, 276 (4th Cir.
1999)(“The rationale for constraining an
arbitrator’s subpoena power is clear.
Parties to a private arbitration agreement
forego certain procedural rights attendant
to formal litigation in return for a more
efficient and cost-effective resolution of
their dispute. A hallmark of arbitration –
and a necessary precursor to its efficient
operation – is a limited discovery
process.”). Thus, contrary to Hay’s claim,
heeding the clear language of Section 7
does not lead to absurd or even
unreasonable results.

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Of course, one may well think that
it would be preferable on policy grounds
for arbitrators to be able to require non-
parties to produce documents without also
subpoenaing them to appear in person
before the panel. But if it is desirable for
arbitrators to possess that power, the way
to give it to them is by amending Section 7
of the FAA, just as Rule 45 of the Federal
Rules of Civil Procedure was amended in
1991 to confer such a power on district
courts.
The Fourth Circuit has interpreted
Section 7 in a way that is largely consistent
with our reading. In COMSAT Corp. v.
Natl. Science Foundation, supra, the court
held that the plain meaning of Section 7
did not empower an arbitrator to issue pre-
hearing discovery subpoenas to nonparties:
Nowhere does the FAA
grant an arbitrator the
authority to order non-
p a r t ie s to appear a t
depositions, or the authority
to demand that non-parties
provide the litigating parties
with documents during pre-
hearing discovery. By its
own terms, the FAA’s
subpoena au th or ity i s
defined as the power of the
arbitration panel to compel
non-parties to a p p ear
‘before them;’ that is, to
compel testimony by non-
parties at the arbitration
hearing.
190 F.3d at 275. In dicta, however, the
COMSAT court suggested that an
arbitration panel might be able to
subpoena a non-party for pre-hearing
discovery “under unusual circumstances”
and “upon a showing of special need or
hardship.” Id. at 276 . While we agree
with COMSAT’s holding, we cannot agree
with this dicta because there is simply no
textual basis for allowing any “special
need” exception. Again, while such a
power might be desirable, we have no
authority to confer it.
We have carefully considered but
must respectfully disagree with the Eighth
Circuit’s holding in Security Life that
Section 7 authorizes arbitrators to issue
p r e - h e a r in g d o c u m e n t - p r o d u ct i o n
subpoenas on non-parties. In Security
Life, the Eighth Circuit reasoned that the
“the interest in efficiency is furthered by
permitting a party to review and digest
relevant documentary evidence prior to the
arbitration hearing.” Security Life, 228
F.3d at 870. In our view, however, this
policy argument cannot supersede the
statutory text.2
2We have also considered the District
Court decisions that have reached similar
results. See In re Arbiration between
Douglas Brazell and America Color
Graphics, Inc., 2000 U.S. Dist. Lexis
4482 (S.D.N.Y. April 6, 2000); Meadows
Indemnity Co., Ltd. v. Nutmeg Insurance
Co., 157 F.R.D. 42, 45 (M.D. Tenn.
1994); Stanton v. Paine Webber, 685
F.Supp 1241, 1242 (S.D. Fla 1988).

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Even if we were to look outside the
statutory text to make our decision, any
argument in favor of ignoring the literal
meaning of the FAA in the name of
efficiency seems to cut against Supreme
Court precedent regarding the role of
efficiency considerations in interpreting
the Act. Although efficiency is certainly
an objective of parties who favor
arbitration over litigation, see, e.g.,
Alexander v. Gardner-Denver Co., 415
U.S. 36, 58 (1974); Painewebber Inc. v.
Hofmann, 984 F.2d 1372, 1380 (3d Cir.
1993), efficiency is not the principal goal
of the FAA. Rather, the central purpose of
the FAA is to give effect to private
agreements. See Dean Witter Reynolds,
Inc. v. Byrd, 470 U.S. 213, 218-19
(1985)(“Byrd”) (“The legislative history of
the Act establishes that the purpose behind
its passage was to ensure judicial
enforcement of privately made agreements
to arbitrate. We therefore reject the
suggestion that the overriding goal of the
Arbitration Act was to promote the
expeditious resolution of claims.”).
In Byrd, the Supreme Court
a d d r e s s e d t h e a r g u me n t t h at
considerations of efficiency should control
the interpretation of the provisions of the
FAA relating to the enforcement of
arbitration agreements. The complaint in
that case asserted a federal claim that was
not going to be arbitrated, as well as
pendent state claims that were covered by
a mandatory arbitration agreement. The
Supreme Court was presented with the
argument that the District Court had the
authority to refuse to compel arbitration of
the pendent claims because this would
have resulted in wasteful bifurcated
proceedings and because the drafters of
the FAA had not explicitly considered the
prospect of such proceedings. See 470
U.S. at 219.
Rejecting this argument, the
Supreme Court noted that the terms of
Sections 3 and 4 of the FAA, 9 U.S.C. §§
3 and 4, required the District Court to
compel arbitration of the pendent claims.
See 470 U.S. at 218. The Court then
examined the legislative history of the
FAA and “reject[ed] the suggestion that
the overriding goal of the Arbitration Act
was to promote the expeditious resolution
of claims.” Id. Instead, the Court
concluded, “[t]he preeminent concern of
Congress in passing the Act was to
enforce private agreements into which the
parties had entered.” Id. at 221. This
concern, the Court held, required rigorous
enforcement of agreements to arbitrate.
Id. We take from Byrd the lesson that
Congress’s failure explicitly to consider an
inefficient byproduct of the Arbitration
Act does not render the text ambiguous.
Under Byrd’s reasoning, efficiency
considerations clearly cannot override the
terms of Section 7. Indeed, since the
efficiency interest was far stronger in Byrd
than it is in this case, the result here
follows a fortiori. In a case such as the
None of these cases provides an adequate
justification for disregarding the plain
meaning of Section 7's text.

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one before us, convening and adjourning
an arbitration panel will hardly prove an
insurmountable obstacle; the costs will be
slight in comparison to amassing and
transporting a huge volume of documents.
Interpreting Section 7 as we do shifts the
balance of power slightly from the party
that seeks the documents to the non-party
that is subpoenaed. Under our
interpretation, the party seeking the
documents cannot simply obtain a
subpoena requiring the documents to be
shipped from one warehouse to another;
instead, the party will be forced to appear
at a proceeding during which the
documents are produced. This slight
redistribution of bargaining power is
unlikely to have any substantial effect on
the efficiency of arbitration. Moreover, as
we noted in the previous section, the rule
we adopt in this case may in fact facilitate
efficiency by reducing overall discovery in
arbitration. In any event, if patent
inefficiency, such as that resulting from
the bifurcated proceedings at issue in
Byrd, is insufficient to overcome a textual
command, an ambiguous efficiency effect
certainly cannot do so.
In sum, we hold that the FAA did
not authorize the panel to issue a pre-
hearing discovery subpoena to PwC and
E.B.S.. We further reject any “special
needs exception” to this rule. If Hay wants
to access the documents, the panel must
subpoena PwC and E.B.S. to appear before
it and bring the documents with them.
B.
We now turn to the PwC’s
argument3 that the subpoenas at issue in
this case were improper for an additional
reason, namely, because they sought the
production of documents that were located
outside the territorial jurisdiction of the
District Court. Although it is not strictly
necessary for us to decide this issue at this
time, we believe that it is appropriate for
us to do so because of the potential that
Hay will obtain a new subpoena calling on
a PwC representative to appear at an
arbitration proceeding and to bring the
documents at issue to that proceeding. If
that occurs, PwC may renew the argument
in question, and the likely result would
then be another appeal. In order to avoid
unnecessary litigation, we address PwC’s
argument now.
PwC contends that Fed. R. Civ.
Proc. 45(a)(2)4 prohibits subpoenas duces
3E.B.S. does not join in this argument.
4Fed. R. Civ. Proc. 54(b)(2) provides
in relevant part as follows:
[A] subpoena may be
served at any place within
the district of the court by
which it is issued, or at any
place without the district
that is within 100 miles of
the place of the deposition,
hearing, trial, production,
or inspection specified in
the subpoena or at any
place without the state
where a state statute or rule

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tecum for documents located outside the
territory within which a subpoena may be
served under Fed. R. Civ. Proc. 45(b)(2).
PwC relies on the following language in
Rule 45(a)(2):
If separate from a subpoena
commanding the attendance
of a person, a subpoena for
production or inspection
shall issue from the court for
the district in which the
production or inspection is
to be made.
As applied to the situation that we
have postulated (the subsequent service on
PwC of a subpoena calling for both an
appearance before the arbitration panel and
the production of documents), PwC’s
argument has several flaws. We will
mention two.
First, the portion of Rule 45(a)(2)
on which PwC’s argument is based applies
only to a subpoena duces tecum that is
“separate from a subpoena commanding
the attendance of a person.” We have
held, however, that the FAA does not
permit such subpoenas. The portion of
Rule 45(a)(2) that applies when a witness
is subpoenaed to appear contains no
similar language. Rather, that portion of
the Rule states only that a subpoena for
attendance at a trial, hearing, or deposition
shall issue from the court for the district
“in which the hearing or trial or hearing is
to be held” or from “the court for the
district designated in the notice of
deposition as the district in which the
deposition is to be taken.” Nothing in this
language suggests that a witness who is
subpoenaed to testify may not also be
directed to bring documents that are not
located within the territorial limits set out
in Rule 45(b)(2).
Second, PwC misinterprets the
language in Rule 45 (a)(2) on which it
relies. As noted, that provision states that
a subpoena calling only for the
“production or inspection” of documents
“shall issue from the court for the district
in which the production or inspection is to
be made.” “Production” refers to the
delivery of documents, not their retrieval,
and therefore “the district in which the
production . . . is to be made” is not the
district in which the documents are housed
but the district in which the subpoenaed
party is required to turn them over.
The Notes to the 1991 Amendment
reflect the same understanding of this
language. The Notes state: “Paragraph
(a)(2) makes clear that the person subject
to the subpoena is required to produce
of court permits 1
service of a 2
subpoena issued by 3
a state court of 4
general jurisdiction 5
sitting in the place 6
of the deposition, 7
hearing, trial, 8
production, or 9
inspection specified 10
in the subpoena. 11

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materials in that person’s control whether
or not the materials are located within the
District or within the territory within
which the subpoena can be served.” Fed.
R. Civ. Proc. 45, Committee Notes, 1991
Amendment Subdivision (a)(emphasis
added); see also 9 JAMES WM. MOORE ET
AL., MOORE’S FEDERAL PRACTICE para.
45.03 (3d ed. 2000)(“The subpoena should
issue from the Court where the production
of documents is to occur, regardless of
where the documents are located.”); 9A
CHARLES ALAN WRIGHT AND ARTHUR R.
M I LL E R, F E D ERAL PRACTICE AND
PROCEDURE § 2456 at 31 (1995 & 2003
Supp.)(“Even records kept beyond the
territorial jurisdiction of the district court
issuing the subpoena may be covered if
they are controlled by someone subject to
the court’s jurisdiction.”).
PwC’s belief that a subpoena
cannot reach extraterritorial documents
seems to arise out of a misreading of
Legion Ins. Co. v. John Hancock Mutual
Life Ins. Co., 33 Fed. Appx. 26, 2002 WL
537652, 2002 U.S. App. LEXIS 6797 (3d
Cir. 2002). In Legion, the United States
District Court for the Eastern District of
Pennsylvania held that it lacked personal
jurisdiction over a party, CSIS, on whom
an arbitrator’s subpoena had been served,
and the Court therefore refused to enforce
the subpoena. Affirming, a panel of our
Court wrote that “in light of the territorial
limits imposed by Rule 45 upon the service
of subpoenas, we conclude that the District
Court did not commit error in denying
[the] motion to enforce the arbitration
subpoena against CSIS, which, as a
nonparty located in Florida, lies beyond
the scope of the court’s subpoena
enforcement powers.” Legion, 33 Fed.
Appx. at 28, 2002 U.S. App. Lexis 6797 at
*7. PwC cites language in the opinion that
it interprets as supporting its argument, but
PwC takes that language out of context.
The other cases on which and PwC relies
are either unpersuasive or inapposite.5
5PwC relies on the statement in
Natural Gas Pipeline Co. of Am. v.
Energy Gathering, Ltd., 2 F.3d 1397,
1406 (5th Cir. 1993), that “a federal
court sitting in one district cannot issue a
subpoena duces tecum to a non-party for
the production of documents located in
another district.” However, this
statement was dictum; the basis for the
statement is unclear; and it appears that
both the subpoena recipient and the
documents in that case may have been
located beyond the reach of Fed. R. Civ.
Proc. 45(b)(2)(the court was in Houston,
Texas, and the non-party and the records
were in Mississippi).
In Cates v. LTV Aerospace Corp.,
480 F.2d 620 (5th Cir. 1973), Navy
regulations specified that the documents
in question could be obtained only from
the Secretary of the Navy in Washington,
but a party attempted to obtain the
documents by serving a subpoena on the
commanding officer of a naval facility in
Texas. The court held that the
regulations could not be circumvented in
this way. The critical factor in Cates was
not the location of the documents but the

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We have considered all of the
arguments made by PwC regarding the
location of the documents, but we find
them unconvincing.
III.
For the reasons set out above, the
order of the District Court is reversed.
CHERTOFF, Circuit Judge, concurring:
I join Judge Alito’s opinion
in full. But I appreciate the reason that a
number of courts have been motivated to
read a pre-hearing discovery power into
the arbitration rules. I write separately to
observe that our opinion does not leave
arbitrators powerless to require advance
production of documents when necessary
to allow fair and efficient proceedings.
Under section 7 of the
Federal Arbitration Act, arbitrators have
the power to compel a third-party witness
to appear with documents before a single
arbitrator, who can then adjourn the
proceedings. This gives the arbitration
panel the effective ability to require
delivery of documents from a third-party
in advance, notwithstanding the
limitations of section 7 of the FAA. In
many instances, of co urse, the
inconvenience of making such a personal
appearance may well prompt the witness
to deliver the documents and waive
presence. See David M. Heilbron, The
Arbitration Clause, the Preliminary
Conference, and the Big Case, 45 Arb. J.
38, 43-44 (1990).
To be sure, this procedure
requires the arbitrators to decide that they
are prepared to suffer some inconvenience
of their own in order to mandate what is,
in reality, an advance production of
documents. But that is not necessarily a
bad thing, since it will induce the
arbitrators and parties to weigh whether
advance production is really needed. And
the availability of this procedure within
the existing statutory language should
satisfy the desire that there be some
mechanism “to compel pre-arbitration
discovery upon a showing of special need
or hardship.” Comsat Corp. v. Nat’l. Sci.
Found., 190 F.3d 269, 276 (4th Cir. 1999).
location of the officer from whom they
had to be sought.
In Ariel v. Jones, 693 F.2d 1058
(11th Cir. 1982), a district court in
Florida quashed a subpoena duces tecum
for documents stored in Colorado on the
ground that the agent served in Florida
did not have effective control of the
documents. In affirming, the court of
appeals did not endorse the principle
advocated by PwC that a non-party may
not be subpoenaed to produce documents
located outside the district court’s
territorial jurisdiction. Rather, the court
of appeals held that the trial court had
not abused its discretion in quashing the
subpoena as unreasonable and
oppressive.

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