Using Subpoenas

In April 2024, as part of a series on what happens at a hearing, I wrote about subpoenas. Here’s what I wrote:

Before the hearing, the parties should come to an agreement about witnesses. Once you know the hearing date, make sure your witnesses know, too. In the best case scenario (or because the contract requires it), the parties identify their witnesses ahead of time, and work together to ensure that the witnesses are available on the hearing date. This means releasing witnesses from work to testify, determining pay arrangements, and coordinating subpoenas for witnesses who are reluctant to testify or need a subpoena to be released from work. Subpoenas are also helpful if a witness needs to be excused from jury duty or to reschedule another matter. The parties might also agree that some witnesses will appear by video or telephone, or that a witness’s written statement is sufficient.

Arbitrators prefer that parties coordinate on this process because resolving disputes about witnesses at the hearing feels needless, time-consuming, and argumentative. If one party is not willing to cooperate in arranging witnesses, the party calling that witness should request a subpoena from the arbitrator as early as possible.

Arbitrators have different practices about subpoenas. Some want the parties to prepare a subpoena and send it to the arbitrator for signature. Other arbitrators will sign blank subpoenas and let the party requesting it fill in the details. Still others have their staff to do the entire subpoena itself. Ask the arbitrator what their practice is and do so with enough advance warning that the arbitrator can prepare subpoenas before the hearing, with time to spare for serving the subpoena and for the witness to make arrangements to be available.

Here is the subpoena policy that I share with the parties when they ask:

Subpoena Policy

I will sign subpoenas and/or subpoenas duces tecum requested and prepared by either party with notice to the other side, pursuant to California state law and subject to any applicable terms of the collective bargaining agreement.

But what if the witness doesn’t comply?

So far, this has not come up for me but it does happen that a witness refused to comply with a subpoena, leaving the party who wants their testimony in a difficult position. In the trial court, the party issuing the subpoena can move to enforce the subpoena while the other party can move to quash it. When the court compels a witness to testify, they have the muscle of the state to enforce it, such as a sheriff or a federal marshal.

When the subpoena is issued by an arbitrator, they don’t have that kind of “muscle.” In some states, the party seeking enforcement can go to court and get an order compelling the witness to testify, but if that isn’t available, they are in a tough spot. What can they, or the arbitrator, do?

In some places, the court may permit the arbitrator to file an enforcement action to compel testimony. Again, that will depend on the jurisdiction as well as the arbitrator’s willingness to take that action absent a financial arrangement with the parties. Even putting the money aside, it is time-consuming to enforce a subpoena and can cause uncertainty and delay into what is supposed to be an expeditious process.

If the subpoenaed witness is under the control of the other party, like an employee, than an arbitrator has the option to “draw an adverse inference” about the witness’s story. In other words, if the employer could have produced the witness by ordering them to appear pursuant to the subpoena, and the employer refused to do so, the arbitrator can determine that the witness’s testimony would have been bad for the employer, and assume that the union’s characterization of the facts is true.

The situation is more complicated, however, when the witness is a third party. This is a common problem when the witnesses are customers (retail), passengers (transit), patients (healthcare), or children (education). Assuming you are unable or unwilling to force a third party witness to appear, you have a few choices about how to present your case.

First, as usual, if you have done a thorough investigation, this is much less of a problem. At the outset, you should use an initial complaint from a third party only as the starting point of the investigation, and all other avenues, including asking the grievant and other witnesses about every aspect of the third party witness’s story. For example, I often hear cases where a passenger has complained about a bus driver, which triggers a review of the video, the audio from the call the command center, an interview with the driver, and a review of the driver, supervisor, and dispatcher notes about the call. We don’t need the passenger to testify in this case, because if their report was true, it will be demonstrated by the other evidence.

If those other pieces of evidence weren’t identified at the beginning, try to find them now. All is not lost if you have evidence that corroborates the out-of-hearing statement and supports the allegations or defense.

You might also see if the witness is willing to informally discuss it in the presence of the union and employer, without coming to the hearing. This will let both parties hear the story, and they can create a stipulation that encapsulates the witness’s story.

Under normal circumstances, most arbitrators are unwilling to rely on a written statement for the facts contained therein, even if they admit it as a hearsay document. However, if the statement was written at the time the incident occurred, is signed, and you can put on evidence about your efforts to reach the witness or enforce the subpoena, an arbitrator may be willing to consider the written statement in lieu of their testimony. It isn’t ideal, because the other party didn’t have time to cross examine the witness, but if they had the intervening time to conduct their own investigation, it isn’t fatal to your case.

Finally. . .

Last time, I wrote about Artificial Intelligence in Arbitration and mentioned that my colleague Robert Creo and I would be publishing an article about it. It’s behind a fairly steep paywall, but The Benefits and Pitfalls of AI in Arbitration Video Hearings is available for people with the Labor and Employment Law subscription through CCH Wolters Kluwer.