In Empire Financial Group v. Pension Financial Services, (N.D. Tex. Mar. 3, 2010), the District Court for the Northern District of Texas, ruling on an issue of first impression in the Fifth Circuit, held that an arbitrator may not order document production from a non-party apart from doing so in connection with the attendance of the non-party at an arbitration hearing. The court held that section 7 of the Federal Arbitration Act (FAA) only mentions orders to produce documents when brought with a witness to a hearing and "the court declines to read greater powers into the text of § 7 despite policy preferences favoring arbitration efficiency, because the court's policy preferences cannot override the clear text of the statute."

The court noted that the circuits are split: whereas the Second and Third Circuits have held that pre-hearing document discovery related to non-parties is not authorised by the FAA, the Fourth Circuit has held that it may be allowed under "unusual circumstances" and the Eighth Circuit has held that an arbitrator may order pre-hearing document discovery as to non-parties without limitation. Should the Supreme Court ever consider this issue, it is noteworthy that Associate Justice Samuel Alito, then a circuit judge, authored the Third Circuit opinion stating that this method of discovery is not authorised by the FAA.