A recent decision from the Federal Court of Australia sheds light on how to effectively seek a subpoena from a court in support of arbitration proceedings.
Take away food
The Court is not overly prescriptive in setting out the criteria for granting a subpoena, but that does not mean that the Court gives carte blanche to the arbitral tribunal, merely providing a rubber stamp to subpoena requests. .1
The parties must circumvent this uncertainty by being intentional in the documents requested in the subpoena. This is particularly important in arbitration proceedings where the assistance of the court is necessary, in order to avoid any delay and to ensure the effectiveness of the summons requested.
This decision of the Federal Court of Australia in Mountain View Productions LLC v Keri Lee Charters Pty ltd  FCA 161 has resolved a dispute brought in an arbitration sitting in Queensland, in which a Brisbane company, Keri Lee Charters Pty Ltd (the claimant in the arbitration), alleged that its luxury motor yacht of 55 meters had suffered $12.85 million in damage during the charter.
The defendant in the arbitration, a California company, Mountain View Productions LLC, filed an application in Federal Court for a non-disputing party (another Queensland company) to be served with a subpoena to produce documents under of Article 23(3) of the International Arbitration Act 1974 (Cth) (IIA). The damage to the vessel was evident by comparing the reports prepared before and after the vessel was chartered. According to the respondent’s argument, the reports were deficient in that they omitted the existing damage to the vessel.
Request a Subpoena in Support of Arbitration
A party wishing to subpoena a person to appear before an arbitral tribunal and/or produce documents listed in a subpoena must first receive consent from the tribunal.2 As stated in the decision, in reaching its decision, the arbitral tribunal will consider the effect the subpoena may have on the proceedings generally (i.e. whether it will cause delays, disruptions or even help referees); if the subpoena is requested for a bona fide purpose; and above all, that the requesting party does not use the subpoena as a tactic to prolong the proceedings.3
The Federal Court is aware that arbitrators are in the best position to assess the relevance of the documents requested in the subpoena – they know best the issues in dispute and how they might be proven. The Court is therefore reluctant to challenge the arbitrators’ conclusions on the relevance of the document and/or the person sought in the summons, except in cases of force majeure.4
The issue here was not strictly relevance, but reasonableness. At the heart of the Court’s concern was the fact that the documents requested were not bounded by a specific time period; the subpoena simply noted that “all documents” exchanged between the companies relating to the repair and chartering of the vessel had to be produced. In practice, this meant (assuming the documents existed) the production of documents created more than a decade before the events in dispute.
The Court found this aspect of the subpoena to be unreasonable, since the production of such a wide range of documents would have no legitimate forensic purpose. In particular, the Court observed that if the subpoena requested documents covering a more limited period, that would be “amply sufficient” and reasonable. Therefore, the court ordered the subpoenas but imposed a limitation on the documents produced in the period beginning two years before the charter at issue.