Vividus, LLC v. Express Scripts, Inc., 878 F.3d 703

HMC (Vividus, LLC f/k/a HM Compounding Services and HMX Services, LLC) sued various PBMs; HMC’s claims against CVS were sent to arbitration in Arizona; Express Scripts was not a party to that arbitration but was a defendant in separate Missouri litigation.
In the Missouri case Express Scripts produced documents to HMC under a protective order. Arizona arbitrators subpoenaed Express Scripts to produce those documents for use in the Arizona arbitration, directing production to HMC’s counsel in Miami.
Express Scripts did not respond to the arbitrators’ subpoena. HMC petitioned the District of Arizona under 9 U.S.C. § 7 to enforce the subpoena or compel Express Scripts to object.
The district court denied HMC’s petition, concluding § 7 of the FAA does not authorize arbitrators to compel third-party document production outside the presence of the arbitrator (i.e., pre-hearing production).
HMC appealed; the Ninth Circuit reviewed the statutory interpretation de novo and affirmed the district court, holding § 7 limits document production to attendance "before" the arbitrator (at hearings).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 9 U.S.C. § 7 authorizes arbitrators to compel third parties to produce documents prior to a hearing	§7’s power to require witnesses to “bring with them” documents implies authority to require pre-hearing production for review	§7’s text limits production to documents brought with a witness "to attend before" the arbitrator; no freestanding pre-hearing subpoena power	Held: §7 does not grant arbitrators power to order third parties to produce documents prior to a hearing; production is limited to materials produced "before" the arbitrator
Whether courts should infer implicit pre-hearing discovery power under §7 to avoid absurd results	Implied power is necessary for practical efficiency and to avoid absurd restriction	No absurdity: non-parties didn’t consent to arbitration; limiting production reduces burdens and fishing expeditions	Held: Court rejects creation of additional discovery powers beyond §7’s text; declining to infer implicit pre-hearing power

Whittaker Corp. v. United States, 825 F.3d 1002 (9th Cir. 2016) (standard of review for statutory interpretation)
United States ex rel. Hartpence v. Kinetic Concepts, Inc., 792 F.3d 1121 (9th Cir. 2015) (statutory interpretation principles)
Hay Group, Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404 (3d Cir. 2004) (§7 limits subpoenas to production at arbitration attendance)
Life Receivables Tr. v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210 (2d Cir. 2008) (documents discoverable only when brought before arbitrators)
COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269 (4th Cir. 1999) (FAA does not authorize non-party prehearing discovery)
In re Security Life Ins. Co. of Am., 228 F.3d 865 (8th Cir. 2000) (recognized implied pre-hearing production power but distinguished on facts)
Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1 (2000) (plain statutory meaning controls absent absurdity)