Filed 5/24/23 McConnell v. Advantest America CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

TIM MCCONNELL, et al.,

Petitioners and Appellants,

v.

ADVANTEST AMERICA, INC. et al.,

Defendants and Respondents.

D080532

(Super. Ct. No. 37-2022-

00009244-CU-PT-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Matthew C. Braner, Judge. Reversed.

Willkie Farr & Gallagher, Jonathan A. Patchen and Jennifer S. 

Maybee, for Petitioners and Appellants. 

Debevoise & Plimpton, John M. Neukom; Skadden, Arps, Slate, 

Meagher & Flom, Abraham A. Tabaie; and Michael M. Powell (pro hac vice)

for Defendants and Respondents.
2

INTRODUCTION

The California Arbitration Act (CAA; Code Civ. Proc., § 1280 et seq.)1

confers upon an arbitrator the power to issue “[a] subpoena requiring the 

attendance of witnesses, and a subpoena duces tecum for the production of 

books, records, documents and other evidence, at an arbitration proceeding[.]” 

(§ 1282.6, subd. (a), italics added.) Interpreting section 1282.6, 

subdivision (a), as a matter of first impression, the Court of Appeal in 

Aixtron, Inc. v. Veeco Instruments, Inc. (2020) 52 Cal.App.5th 360, 370

(Aixtron) concluded the subpoena provisions of the CAA did not give an

arbitrator the power to issue “prehearing discovery subpoenas.” (Italics 

added.) 

In this case, an arbitrator issued subpoenas to compel two individuals, 

who are not parties to the arbitration, to appear and produce documents at a 

hearing specially set “for the limited purpose of receiving documents” from 

them, or to download the documents to a website controlled by counsel for the 

party requesting the subpoenas. The subpoenas provided that after the 

production of documents, the “hearing” would be adjourned to a later date, at 

which time the subpoenaed nonparties would be summoned to appear and 

testify. The date for their compliance with the document production was 

nearly 12 months before the scheduled arbitration hearing on the merits. 

After the nonparties refused to comply with the subpoenas, the 

arbitrator compelled compliance. The nonparties petitioned the trial court to 

vacate the order compelling their compliance with the subpoenas. The trial 

court denied the petition to vacate the order, concluding the subpoenas were 

statutorily authorized “hearing” subpoenas under section 1282.6, not 

1 Undesignated statutory references are to the Code of Civil Procedure.
3

subpoenas issued for the purposes of discovery. The nonparties assert the 

judgment should be reversed because the subpoenas are improper discovery 

subpoenas, despite being labeled “hearing” subpoenas.

Under the specific facts of this case, we agree with the nonparties. 

Because we reverse the judgment on this ground alone, we need not and do 

not reach the nonparties’ second contention that the subpoenas are 

unenforceable because the good cause affidavit filed in support of them failed 

to satisfy section 1985, subdivision (b). 

FACTUAL AND PROCEDURAL BACKGROUND

I.

The Business Dispute in the Underlying Arbitration

In the underlying arbitration, Advantest America, Inc. and Advantest 

Test Solutions, Inc. (together, Advantest) assert claims against Samer 

Kabbani, its former senior executive; Lattice Innovation, Inc. (Lattice), a 

company Kabbani allegedly managed and majority-owned at the same he was 

working for Advantest; AEM Holdings Ltd. (AEM) which subsequently 

purchased Lattice; and Wavem US Inc.2

Advantest alleges Kabbani “improperly exploited” his position at 

Advantest and, without disclosing his ties to Lattice, arranged to have 

Lattice selected as one of Advantest’s sub-suppliers and personally profited 

from the arrangement. Advantest also alleges Lattice “aided and abetted”

Kabbani’s wrongdoing by failing to provide Advantest the intellectual 

property and work product it had created under contract for Advantest, after 

Kabbani’s dealings came to light. 

2 Neither the parties nor the record offer an explanation as to the 

relationship of Wavem US Inc. to the underlying business dispute.
4

When the company learned of his ties to Lattice, Advantest’s lawyers 

interviewed Kabbani on June 5, 2020. At the end of the interview, Kabbani 

provided the lawyers with his personal cell phone to be forensically imaged 

for further investigation into his ties with Lattice. The investigation led to 

Advantest’s arbitration claims against Kabbani, Lattice, AEM, and Wavem 

US Inc. (together, Arbitration Respondents). 

II.

Kabbani’s Deletion of the WhatsApp Messaging Application

During arbitration, Advantest learned Kabbani purposefully deleted

the “WhatsApp”3 messaging application from his cell phone before turning it

over to Advantest’s lawyers, on June 5, 2020. In November 2021, Advantest 

deposed Kabbani in the arbitrator’s presence “regarding his use of and 

deletion of WhatsApp and messages from his phone.” He admitted deleting

the application while sitting in the conference room with Advantest lawyers 

present, and that deletion of the WhatsApp messaging application resulted in 

the loss of any WhatsApp messages he sent or received before June 5, 2020.4

Kabbani identified five people associated with Lattice with whom he 

“could potentially . . . have exchanged WhatsApp messages” regarding 

3 WhatsApp is a messaging application that uses “end-to-end encryption”

which “ensures only you and the person you’re communicating with can read 

or listen to what is sent, and nobody in between, not even WhatsApp.” 

(<https://faq.whatsapp.com/820124435853543/?helpref=hc_fnav> [as of May 

24, 2023], archived at <https://perma.cc/EK3M-KY4R>.) Kabbani testified he 

“like[d] using WhatsApp for certain communications. It’s Highly encrypted 

and off the grid.”

4 In its letter to the arbitrator requesting issuance of the nonparty

subpoenas at issue in this appeal, Advantest stated that Kabbani’s counsel 

represented that the deleted WhatsApp messages are not recoverable from 

Kabbani’s phone or back-up accounts.
5

Lattice’s affairs.” They included Appellants Tim McConnell (Lattice’s former 

president and current consultant) and Don Bachelder (Lattice’s senior 

engineer), as well as three others, including another Lattice employee and 

two persons formerly affiliated with Lattice’s board. Kabbani testified he 

“[p]ossibly” used WhatsApp to discuss matters related to or regarding Lattice, 

including product development “from a design point of view.” He did not 

recall using WhatsApp for “substantive business discussions regarding 

Lattice” or discussions regarding “Lattice’s finances.”

At the conclusion of Kabbani’s deposition, Advantest requested “in light

of Kabbani’s deletion of his WhatsApp messages” that the arbitrator order 

Lattice to produce “WhatsApp messages between Lattice employees . . . and 

Kabbani.” (Italics added.) The arbitrator found that such documents should 

have been produced as part of the Arbitration Respondents’ “Rule 17 

obligations and order[ed] their production” in Order No. 4.5 Lattice did not 

comply with the order, apparently contending it lacked “possession, custody, 

or control over its employees’ WhatsApp messages with . . . Kabbani, and can 

5 JAMS Rule 17 pertains to the exchange of information and provides in 

part: “(a) The Parties shall cooperate in good faith in the voluntary and 

informal exchange of all non-privileged documents and other information

(including electronically stored information (‘ESI’)) relevant to the dispute or 

claim immediately after commencement of the arbitration. They shall 

complete an initial exchange of all relevant, non-privileged documents, 

including, without limitation, copies of all documents in their possession or 

control on which they rely in support of their positions, and names of 

individuals whom they may call as witnesses at the Arbitration Hearing, 

within twenty-one (21) calendar days after all pleadings or notice of claims 

have been received. The Arbitrator may modify these obligations at the 

Preliminary Conference.”

(<https://www.jamsadr.com/files/Uploads/Documents/JAMSRules/JAMS_Comprehensive_Arbitration_Rules-2021.pdf> [as of May 24, 

2023], archived at <https://perma.cc/7GDM-PEKR>.)
6

produce them only with the voluntary consent of those Lattice employees” 

and “that such consent ha[d] not been granted.” 

III.

The Nonparty Subpoenas

After Lattice failed to produce the WhatsApp messages between its 

employees and Kabbani, Advantest requested the arbitrator “open[ ] the 

arbitration hearing early to obtain (via hearing subpoenas) WhatsApp 

messages between . . . Kabbani and others regarding Lattice business 

affairs.” (Italics added.) Advantest provided the arbitrator with prepared 

subpoenas directed to the five individuals identified by Kabbani, including 

Appellants, with whom Kabbani potentially exchanged WhatsApp messages. 

The proposed subpoenas requested each recipient appear at the hearing 

bearing the documents called for by the subpoenas and indicated the hearing 

would then “be adjourned until a later date, at which point the subpoena 

recipient [would] be called to provide testimony.” 

The proposed subpoenas went beyond the original scope of WhatsApp 

messages exchanged between Kabbani and the five individuals previously 

identified by Kabbani. Advantest explained to the arbitrator that the 

proposed subpoenas also included requests “for all other correspondence

with . . . Kabbani concerning the subject matter of Lattice business, in 

addition to WhatsApp messages,” because, as Advantest asserted, “all of the 

documents will ultimately be necessary to litigate this arbitration.” (Italics 

added.) Thus the documents requested in the proposed subpoenas included:6

6 The parties’ citations to the proposed subpoenas are to objections filed 

by Appellants and a letter to the arbitrator. Accordingly, we rely on the 

parties’ summaries of the proposed subpoenas, which appear similar to the 

redrafted subpoenas signed and issued by the arbitrator, which are in the 

record on appeal.
7

Messages “ ‘using WhatsApp, SMS, MMS, iMessage, Signal Telegram, Wickr, 

WeChat and/or any other messaging service or platform concerning or 

relating to Lattice or the subject matter of Lattice’s business’ ”; “messages 

(from any messaging service or platform) not only to and from . . . Kabbani 

but encompass ‘employees or independent contractors associated with . . .

Kabbani, D&K Engineering, FusionX, Lattice, AEM, or any agents of the 

foregoing parties’ ”; and “email correspondence from all email accounts 

(including personal email accounts) ‘relating to Lattice or the subject matter 

of Lattice’s business.’ ”

The Arbitration Respondents objected to the issuance of the nonparty 

subpoenas, on four grounds: (1) the document requests were “overbroad” and 

Advantest made no showing they contain “material evidence relevant to any 

claim” in the arbitration; (2) “the list of individuals subject to the third party 

subpoenas broaden[ed] without justification those implicated beyond 

employees of Lattice”; (3) the period requested was “unnecessarily and 

unreasonably overbroad”; and (4) “the proposed subpoenas [we]re 

procedurally deficient on their face” under section 1985. The Arbitration 

Respondents asserted that “[d]espite the clear focus of both the Kabbani 

deposition and Order No. 4 on WhatsApp messages between . . . Kabbani and 

Lattice employees, Advantest’s third party subpoenas [were] considerably 

broader⎯in scope, subject matter, and targeted individuals⎯and not 

tethered to any claims in this [a]rbitration.”

After hearing argument, the arbitrator issued Order No. 6 overruling 

the Arbitration Respondents’ objections and granting Advantest’s request for 

issuance of the subpoenas, with modifications. The arbitrator rejected the 

Arbitration Respondents’ objection that it was inappropriate to expand the 

scope to applications other than WhatsApp, finding that “[w]hile Kabbani 
8

may have some of the [non-WhatsApp] documents requested, it is more than 

plausible that Kabbani deleted individual messages or communications on 

other applications as a regular practice. As such, expanding the scope beyond 

WhatsApp is reasonable and avoids issuing a later subpoena to these 

individuals for additional documents.” The arbitrator also rejected the 

Arbitration Respondents’ objection to the subpoenas including individuals 

who are not employed by Lattice or the parties, finding that “Kabbani

testified that he communicated with these individuals regarding Lattice; as 

such, they are likely to have discoverable information.” (Italics added.)

However, the arbitrator found merit in two of the Arbitration 

Respondents’ objections. He agreed the proposed date range of “January 1, 

2017 to the present” was overbroad and accordingly narrowed the date range 

to “May 1, 2017 to December 31, 2020”; and that “asking for all documents 

related to Lattice was overbroad as that would likely go beyond 

communications with Kabbani” and thus narrowed the scope to “Lattice’s 

finances, Lattice’s business in the semiconductor industry, Active Thermal 

Interposer related technology, semiconductor test technology, Advantest, and 

Astronics.”7

Advantest redrafted the subpoenas to conform to Order No. 6 and the 

arbitrator signed them. The subpoenas, entitled as an “arbitration subpoena 

to appear and present documentary evidence at an arbitration hearing”

(capitalization omitted), stated:

“By the authority conferred on the undersigned Arbitrator 

by Cal. Code Civ. Proc. §§ 1985 and 1282.6 (c), you are 

hereby summoned to attend as a witness at a hearing to be 

7 The Arbitration Respondents and Advantest also litigated and the 

arbitrator made rulings on whether Advantest complied with the good cause 

requirements of section 1985, subdivision (b), an issue we do not reach.
9

held on January 28, 2022 at 10:00 AM (PST) at JAMS San 

Diego, 401 B Street, Suite 2100, San Diego, CA 92101 or 

via remote audiovisual conference on Zoom, as agreed upon 

by the parties, and to bring with you to the hearing or 

upload to the FTP site (described below) the documents

identified in Schedule A annexed to this SUBPOENA, 

which hearing shall thereafter be adjourned to a later date, 

at which time you are further summoned to appear and to 

testify.” (Italics added.)

Schedule A identified the documents requested as two categories:

“1. All messages in your possession, custody, or control 

exchanged using WhatsApp, SMS, MMS, iMessage, Signal, 

Telegram, Wickr, WeChat, and/or any other messaging 

service or platform dating from May 1, 2017 to December 

31, 2020, and concerning or relating to (i) Lattice’s finances, 

(ii) Lattice’s business in the semiconductor test industry, 

(iii) ATI-related technology, (iv) semiconductor test 

technology, or (v) Advantest or Astronics, including all 

messages sent to or from employees or independent 

contractors associated with . . . Kabbani, D&K Engineering, 

FusionX, Lattice, AEM, or any agents of the foregoing 

parties. 

“2. All correspondence sent or received from all email 

accounts controlled or accessible by you (including personal 

email accounts), other than a Lattice email account, dating 

from May 1, 2017 to December 31, 2020, and concerning or 

relating to (i) Lattice’s finances, (ii) Lattice’s business in 

the semiconductor test industry, (iii) ATI-related 

technology, (iv) semiconductor test technology, or 

(v) Advantest or Astronics.”

The subpoenas also contained an attached list of governing

“Definitions.”8 (Boldface omitted.) As one example, “ ‘Lattice’ ” named in 

Schedule A was defined to include “its directors, officers, managers, 

members, current and former employees, counsel, agents, consultants, 

8 The Definitions and Schedule A are appended to this opinion. (See 

appendix A, post.) 
10

representatives, and any other persons acting on behalf of any of the 

foregoing, and its affiliates, parents, subsidiaries, divisions, joint ventures, 

licensees, franchisees, assigns, predecessors and successors in interest, and 

any other legal entities, whether foreign or domestic, that are owned or 

controlled by these entities and all predecessors and successors in interest to 

such entities.”

Also attached to the subpoenas was Exhibit B, instructions on how to 

upload the requested documents to an FTP website apparently hosted and 

maintained by counsel for Advantest: https://secureftp.skadden.com. 

As previously noted, the subpoenas summoned Appellants “to attend as 

a witness at a hearing to be held on January 28, 2022” at the JAMS San 

Diego office “or via remote audiovisual conference on Zoom.” However, as the 

arbitrator described in a subsequent order, “the arbitrator convened the 

arbitration hearing . . . for the limited purpose of receiving documents from 

subpoenaed third parties.” (Italics added.) And although compliance with the 

document requests was set for January 28, 2022, the arbitration hearing on 

the merits was not to occur until December 5 through 16, 2022, almost one 

year later. Advantest served the subpoenas on Appellants. 

IV.

Advantest’s Request to Compel Appellants’ Compliance with the Subpoenas

At the January 28, 2022 hearing to receive the documents, counsel for 

Appellants appeared without the subpoenaed documents and informed the 

arbitrator that Appellants would not comply with them. Advantest then filed 

a request to compel compliance with the subpoenas. Appellants opposed the 

request. Relying on Aixtron, supra, 52 Cal.App.5th at page 391, Appellants 

argued an arbitrator in a private, contractual arbitration cannot compel a 

nonparty to the arbitration to respond to a subpoena duces tecum for 
11

production of documents issued by the arbitrator “ ‘for the purposes of 

discovery,’ ” and, however they are labeled, these were improper discovery

subpoenas.

After considering briefing and argument on February 14, 2022, the 

arbitrator issued Order No. 11 granting Advantest’s request to compel

Appellant’s compliance with the subpoenas. The arbitrator rejected

Appellant’s argument that the subpoenas were improper discovery subpoenas

and concluded Aixtron did not preclude his power to issue them, because 

Aixtron “dealt with a discovery subpoena not a hearing subpoena.” In so 

ruling, the arbitrator stated that Appellant’s counsel “conceded” that 

section 1282.6, subdivision (a), conferred upon an arbitrator “the power to 

issue document subpoenas to non-parties for production at the arbitration 

hearing,” and that under section 1282, subdivision (b), the arbitrator “has the 

power to convene an arbitration hearing and then adjourn it to another 

date.”9

V.

Appellants’ Petition to Vacate Arbitration Discovery Order

Appellants petitioned the trial court to vacate Order No. 11 compelling 

their compliance with the subpoenas. The trial court issued a tentative 

ruling denying Appellants’ petition to vacate compliance with the subpoenas.

During oral argument, the court agreed with Appellants’ counsel that the 

subpoenas effectively constituted “a work-around” from the prohibition 

against nonparty discovery, but stated, “I don’t agree that it’s not a legal 

9 We note that at the hearing on the motion to compel, Appellants’

counsel⎯in response to the arbitrator’s question “do I have the power to open 

a hearing for a limited purpose such as getting documents and then 

continuing for 10 months?”⎯responded, “I would argue no you don’t. 

Because that is effectively conducting discovery.”
12

work-around.” After hearing argument, the trial court confirmed its 

tentative ruling. 

The trial court found it was “undisputed that, on its face, the 

[s]ubpoena states it is a hearing subpoena and, thus, is a subpoena 

authorized” by section 1282.6. It rejected Appellants’ argument that the 

court should look “beyond the plain language” of the subpoena and find they 

are “actually a ‘discovery’ subpoena.” It held that the “numerous indicators”

which Appellants contend support such a finding were not dispositive

because the key distinction between a discovery subpoena and a hearing 

subpoena was whether the demand required production “at a hearing.”

Because the subpoenas demanded the production of evidence at a hearing, it

concluded they “me[t] the requirements of Aixtron” and were hearing

subpoenas. 

DISCUSSION

I.

Standard of Review

“The question whether an arbitrator in a private, contractual 

arbitration can compel a nonparty to the arbitration to respond to a subpoena 

duces tecum for the production of business records issued by the arbitrator 

for the purposes of discovery is a question of law, which we review de novo.” 

(Aixtron, supra, 52 Cal.App.5th at p. 391.) To the extent this question 

requires us to construe a statute; determine whether the arbitrator exceeded 

his or her powers; or apply law to undisputed facts⎯these are also questions 

which we review de novo. (See United Riggers & Erectors, Inc. v. Coast Iron 

& Steel Co. (2018) 4 Cal.5th 1082, 1089 (United Riggers) [statutory 

interpretation is “an issue of law, which we review de novo”]; Richey v. 

AutoNation, Inc. (2015) 60 Cal.4th 909, 918, fn. 1 [“whether the arbitrator 
13

exceeded his [or her] powers . . . is generally reviewed on appeal de novo”]; 

Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018 [where 

the “issue involves the application of law to undisputed facts, we review the 

matter de novo”].) But where the trial court made factual findings based on 

disputed facts, we review those findings for substantial evidence. (Cooper v. 

Lavely & Singer Professional Corp. (2014) 230 Cal.App.4th 1, 11–12.)

II.

Discovery in Arbitration Proceedings

California law reflects a strong public policy favoring contractual 

arbitration as an expeditious and economical means of dispute resolution.10 

(Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street

(1983) 35 Cal.3d 312, 322.) “[A] limitation on discovery is one important 

component of the ‘simplicity, informality, and expedition of arbitration.’ ” 

(Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 

83, 106, fn. 11, abrogated in part on another ground in ATT Mobility LLC v. 

Concepcion (2011) 563 U.S. 333, quoting Gilmer v. Interstate/Johnson Lane 

Corp. (1991) 500 U.S. 20, 33.) For that reason, “[t]he right to discovery in 

arbitration proceedings under the CAA ‘is generally limited’ and ‘highly 

10 Although normally the first step in reviewing an arbitration dispute is 

to determine whether the question presented is subject to the Federal 

Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) (see Aixtron, supra, 52 Cal.App.5th 

at p. 391), neither Appellants nor Advantest have taken the position that the 

FAA applies to this arbitration. Moreover, the arbitration agreement 

between Advantest and the Arbitration Respondents is not part of the record

on appeal and thus the default rules and procedures in the Code of Civil 

Procedure apply. (Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 

1087 [“When parties agree to resolve statutory claims through arbitration, it 

is reasonable to infer that they consent to abide by the substantive and 

remedial provisions of the [CAA].”].) We also note that Advantest relied on 

the CAA in its request to compel Appellant’s compliance with the subpoenas. 
14

restricted.’ ” (Aixtron, supra, 52 Cal.App.5th at p. 395, quoting Berglund v. 

Arthroscopic & Laser Surgery Center of San Diego, L.P. (2008) 44 Cal.4th 

528, 534 (Berglund); accord Alexander v. Blue Cross of California (2001) 88 

Cal.App.4th 1082, 1088 [right to discovery is generally “highly restricted in 

arbitration proceedings”].) 

The CAA grants arbitrators authority over discovery in certain 

arbitration proceedings. “Section 1283.05 describes the circumstances under 

which ‘depositions may be taken and discovery obtained in arbitration 

proceedings,’ as well as the powers of the arbitrator with regard to such 

discovery.” (Aixtron, supra, 52 Cal.App.5th at p. 395.) The discovery 

authorized in section 1283.05, however, is limited to arbitration of a claim for 

wrongful death or for personal injury (§ 1283.1, subd. (a); see Berglund, 

supra, 44 Cal.4th at p. 535), and in all other arbitrations, the arbitrator may 

grant discovery “[o]nly if the parties by their agreement so provide” (§ 1283.1, 

subd. (b); Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 

1802.) “Unquestionably, discovery is limited in arbitrations (except in injury 

or death cases or where the parties have expressly agreed otherwise).” (Coast 

Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 

690, fn. 9.)

Section 1282.6, at issue in this appeal, governs the issuance of 

subpoenas. Subdivision (a) of section 1282.6 provides: 

“A subpoena requiring the attendance of witnesses, and a 

subpoena duces tecum for the production of books, records, 

documents and other evidence, at an arbitration proceeding or a 

deposition under [s]ection 1283, and if [s]ection 1283.05 is 

applicable, for the purposes of discovery, shall be issued as 

provided in this section. In addition, the neutral arbitrator upon 

their own determination may issue subpoenas for the attendance 

of witnesses and subpoenas duces tecum for the production of 

books, records, documents, and other evidence.” (Italics added.)
15

There is a paucity of case law addressing section 1282.6. The seminal case is 

Aixtron, supra, 52 Cal.App.5th 360. There, as a matter of first impression,

the appellate court interpreted subdivision (a) of section 1282.6 to address 

the question whether this statute allows an arbitrator to issue a “prehearing 

discovery subpoena[ ]” on a nonparty. (Aixtron, at pp. 370, 373.) 

In Aixtron, a party to the arbitration proceeding announced it would be 

seeking “ ‘prehearing discovery’ ” from a nonparty to the arbitration. 

(Aixtron, supra, 52 Cal.App.5th at p. 374.) The party then circulated a 

proposed subpoena for production of the nonparty’s business records, “which 

demanded 16 different categories of documents and the production of certain 

[of the nonparty’s] computers.” (Id. at p. 375.) After the parties disputed the 

scope of the subpoena, the arbitrator modified the language of two demands 

and approved the subpoena, as modified, for service. (Id. at p. 376.) The 

nonparty refused to comply with the subpoena and the arbitrator granted a 

motion to compel compliance. (Id. at p. 377.) The trial court denied the 

nonparty’s petition for a protective order and for rehearing, and the nonparty 

appealed. (Id. at pp. 378, 380.) 

The Aixtron court concluded the parties did not provide for discovery in

their arbitration agreement and section 1283.05 did not apply because the 

dispute did not involve a claim for wrongful death or personal injury. 

(Aixtron, supra, 52 Cal.App.5th at pp. 396, 397.) The court then interpreted 

subdivision (a) of section 1282.6 as limiting an arbitrator’s power to issue “ ‘a 

subpoena requiring the attendance of witness, and a subpoena duces tecum 

for the production of books, records, documents and other evidence’ ” to three 

circumstances: “(1) ‘at an arbitration proceeding’; (2) at ‘a deposition under 

Section 1283,’ and (3) ‘if Section 1283.05 is applicable, for the purposes of 

discovery.’ ” (Aixtron, at p. 398.) 
16

The court found “[t]he first circumstance for which a subpoena may be 

used to compel the attendance of witnesses and the production of evidence is 

‘at an arbitration proceeding.’ ” (Aixtron, supra, 52 Cal.App.5th at p. 398.) 

But it concluded this circumstance did not apply because the plain language 

of this phrase meant a hearing before an arbitrator or panel of arbitrators. 

(Ibid.) Because the subpoena at issue “did not demand that [the nonparty]

produce documents or other evidence (its computers) for an arbitration 

hearing,” the court concluded it “was a discovery subpoena.” (Ibid.) 

The court found the “second circumstance for which a subpoena may be 

used to compel attendance of witnesses and production of documents is at ‘a 

deposition under [s]ection 1283.’ ” (Aixtron, supra, 52 Cal.App.5th at p. 398.) 

Section 1283 provides that an arbitrator, on application of a party, “may 

order the deposition of a witness to be taken for use as evidence and not for 

discovery if the witness cannot be compelled to attend the hearing or if 

exceptional circumstances exist as to make it desirable, in the interest of 

justice and with due regard to the importance of presenting the testimony of 

witnesses orally at the hearing.” (Italics added.) The Aixtron court observed 

that “[n]otably, section 1283 underscores the importance of presenting the 

testimony of witnesses orally at the hearing (i.e., live testimony before the 

arbitrator).” (Aixtron, at p. 398, italics added.) It then concluded the 

subpoena at issue was “not for a deposition for evidentiary purposes under 

section 1283.” (Ibid.)

Last, the court found “[t]he third circumstance for which a subpoena 

may be used in arbitration to compel attendance of witnesses and production 

of evidence is ‘if [s]ection 1283.05 is applicable, for the purposes of 

discovery.’ ” (Aixtron, supra, 52 Cal.App.5th at pp. 398–399.) The court 

construed the statute’s plain language here to mean “the procedures for 
17

issuing subpoenas described in section 1282.6 may only be used for purposes 

of discovery if section 1283.05 applies.” (Id. at p. 399.) Here, the court had

already found that section 1283.05 was inapplicable because the dispute did 

not involve a claim for wrongful death or personal injury. (Aixtron, at 

pp. 396−397.) 

In addition to the language of section 1282.6, the Aixtron court further 

relied on the legislative history to conclude that the subpoena authorized 

under the statute “was intended to be used to compel the attendance of 

witnesses and the production of documents and other evidence at the 

arbitration hearing only and not for discovery purposes.” (Aixtron, supra, 52 

Cal.App.5th at p. 401.) The court took specific notice of the Law Revision 

Commission report that led to the enactment of section 1282.6 as part of the 

1961 overhaul of the CAA, which stated “ ‘ “[i]t would be most unwise and 

inappropriate in an arbitration proceeding to permit the taking of depositions 

. . . for discovery purposes of the parties” ’ and opined that subpoenas duces 

tecum should not be used ‘for the purpose of a “fishing expedition.” ’ ” 

(Aixtron, at p. 401.)

III.

The Subpoenas Issued on Appellants Were Unauthorized Discovery Subpoenas

Appellants agree arbitrators have the power to issue subpoenas to 

nonparties to an arbitration proceeding under section 1282.6. But they 

contend the subpoenas here were improper discovery subpoenas, however 

they are labeled. They claim that because Aixtron, supra, 52 Cal.App.5th 

360, precludes discovery subpoenas, Advantest crafted a “work-around” by 

requesting the arbitrator issue hearing subpoenas requiring Appellants to 

produce the subpoenaed documents at an arbitration hearing. They assert
18

the trial court erred in permitting the workaround and improperly examined 

only the form and title of the subpoenas without considering their purpose. 

Advantest claims Appellants’ characterization of the subpoenas as for 

discovery misses the point in that “[t]he ‘purpose’ of an Arbitration 

Proceeding Subpoena like the Hearing Subpoenas here is compelling the 

provision of evidence ‘at an arbitration proceeding’ before an arbitrator, full 

stop.” Citing Aixtron, supra, 52 Cal.App.5th 360, Advantest argues courts 

are not required to examine the purpose of a subpoena and Appellants’ 

approach should be rejected.

As the Aixtron court found, and we agree, the plain language of section 

1282.6 allows the issuance of “[a] subpoena requiring the attendance of 

witnesses, and a subpoena duces tecum for the production of books, records, 

documents and other evidence, at an arbitration proceeding[.]” (Aixtron, 

supra, 52 Cal.App.5th at p. 398.) Because the subpoenas satisfied this plain 

language requirement for a hearing subpoena, Advantest asserts the analysis 

is over because “the Aixtron court treated the fact that a subpoena calls for 

the provision of evidence at an arbitration hearing as the sine qua non of an 

Arbitration Proceeding Subpoena, with no further analysis required.” We 

reject this contention.

A case is not authority for a proposition not considered therein or an 

issue not presented by its own particular facts. (Ginns v. Savage (1964) 61 

Cal.2d 520, 524, fn. 2; Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 

332, 348 [“A decision, of course, is not authority for what it does not 

consider.”].) In Aixtron, supra, 52 Cal.App.5th 360, the court was called upon 

to consider a subpoena seeking 16 categories of documents, that did not 

require production of the documents at an arbitration proceeding and was 

described by the party seeking it as being for “discovery.” (Id. at pp. 374, 375
19

& 377, fn. 4.) Aixtron did not address the circumstances before us where the 

subpoenas included a requirement that the document production take place 

at a hearing specially set for the limited purpose of receiving the subpoenaed 

documents. 

We reject Advantest’s contention that because the subpoenas required 

production of the documents at a hearing, our analysis ends. If this were the 

case, parties to an arbitration proceeding could avoid the prohibition against 

nonparty discovery, and demand any manner of documents, by simply 

requiring the nonparty produce the documents at an arbitration proceeding. 

We reject Advantest’s literal reading of section 1282.6 because it would defeat 

the purpose of the statutory scheme and lead to absurd results. To 

paraphrase the Aixtron court: “To construe section 1282.6 as granting 

arbitrators unlimited power to issue discovery subpoenas as long as the 

subpoena is [labeled a hearing subpoena], is inconsistent with the limitations 

on discovery in sections 1283.05 and 1283.1. Such an interpretation would 

also nullify the limits on discovery in sections 1283.05 and 1283.1, rendering 

both sections superfluous.” (Aixtron, supra, 52 Cal.App.5th at p. 402.)

Turning to the undisputed facts before us, although the subpoenas 

required the document production at a hearing presided over by the 

arbitrator, the hearing was limited to the arbitrator appearing only for so 

long as needed for the documents to be collected with the intent that the 

hearing be adjourned for nearly 12 months, at which time Appellants would

later be summoned to testify. The subpoenas also allowed Appellants to 

upload the documents to a website controlled by Advantest’s counsel. There 

is no indication in the record showing the arbitrator would have access to this 

website to review or evaluate the purported evidence. This defeats the 

purpose of production at a hearing which gives the arbitrator control over 
20

what is produced, such as ruling on objections and ordering redactions. As 

explained by one federal court addressing the FAA:11

“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.” 

(Hay Group v. E.B.S. Acquisition Corp. (3d Cir. 2004) 360 

F.3d 404, 409 (Hay Group).) 

Subdivision (a) of section 1282.6 requires “the attendance of witnesses” 

at the arbitration proceeding. Section 7 of the FAA, titled “Witnesses before 

arbitrators; fees; compelling attendance” contains a similar requirement. It 

reads in relevant part, as follows: 

“The arbitrators selected either as prescribed in this 

title . . . 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, record, document, or paper which may be deemed 

material as evidence in the case.” (Ibid., italics added.)

A majority of federal courts interpret the italicized language in 

section 7 of the FAA as authorizing arbitral summonses for a person to 

physically appear before the arbitrator to provide testimony and documents. 

(See Managed Care Advisory Grp., LLC v. CIGNA Healthcare, Inc. (11th Cir. 

11 Although the parties briefed this appeal under the CAA, we refer to the 

FAA based on its similarity to the CAA.
21

2019) 939 F.3d 1145, 1159–1160 [“[T]he FAA implicitly withholds the power 

to compel documents from non-parties without summoning the non-party to 

testify. And if Congress intended the arbitrators to have the broader power 

to compel documents from non-parties without summoning the non-party to 

testify, it could have said so. Accordingly, we conclude that 9 U.S.C. § 7 does 

not permit pre-hearing depositions and discovery from non-parties.”]; CVS 

Health Corp. v. Vividus, LLC (2017) 878 F.3d 703, 708 (CVS Health); Life 

Receivables Trust v. Syndicate 102 at Lloyd’s of London (2d Cir. 2008) 549 

F.3d 210, 216–217 & p. 218 [FAA “[s]ection 7’s presence requirement . . .

forces the party seeking the non-party discovery—and the arbitrators 

authorizing it—to consider whether production is truly necessary.”].) There 

is a minority view holding that section 7 of the FAA gives arbitrators implicit 

“power to order the production of relevant documents for review by a party 

prior to the hearing.” (Security Life Ins. Co. of Am. v. Duncanson & Holt (8th 

Cir. 2000) 228 F.3d 865, 870–871 (Security Life); COMSAT Corp. v. Nat’l 

Science Found. (4th Cir. 1999) 190 F.3d 269, 276 [noting a party may be able 

to compel pre-arbitration discovery “under unusual circumstances” and “upon 

a showing of special need or hardship”].)

At the hearing on Appellants’ petition to vacate Order No. 11, the trial 

court appeared to rely on the minority view expressed in Security Life, supra, 

228 F.3d 865, that arbitrators have the “implicit” power “to order the 

production of relevant documents for review by a party prior to the hearing.” 

(Id. at pp. 870–871.) The Aixtron court, however, adopted the majority view, 

as expressed by the Ninth Circuit in CVS Health, supra, 878 F.3d at 

page 703, that arbitrators do not have the implicit power to order document 

discovery from nonparties for review by a party prior to a hearing. (Aixtron, 
22

supra, 52 Cal.App.5th at p. 395.) We also adopt the majority view and reject 

the minority view relied on by the trial court.

Additionally, the chronology of events and the subpoenas themselves, 

show they went far beyond the deleted WhatsApp messages, the original 

reason for issuing the subpoenas. Based on Kabbani’s purposeful deletion of 

his WhatsApp messaging application from his cell phone before he turned it 

over to Advantest, the arbitrator ordered Lattice to produce copies of all 

WhatsApp messages between Kabbani and Lattice employees finding that 

the documents should have been produced as part of the Arbitration 

Respondents’ “Rule 17 obligations and orders their production.” When 

Lattice claimed it lacked control of the messages, Advantest turned to 

Appellants, as the recipients of Kabbani’s messages to obtain this evidence. 

Advantest argued to the arbitrator that the subpoenas were not for discovery 

but for “the collection of evidence for the hearing in this matter.” 

We agree that Advantest was entitled to obtain from Appellants 

evidence that it could not obtain from Kabbani; namely, the WhatsApp 

messages exchanged between Kabbani and Appellants regarding Lattice. 

The subpoenas, however, went far beyond obtaining these messages—

evidence that was known to exist. The subpoenas turned into discovery when 

they were expanded to seek, among other things, “all messages sent to or 

from” unidentified employees or independent contractors associated with 

Kabbani, Lattice, and three other entities on WhatsApp, to messages sent on

seven other messaging applications and “any other messaging service or 

platform” concerning or relating to “(i) Lattice’s finances, (ii) Lattice’s 

business in the semiconductor test industry, (iii) ATI-related technology, 

(iv) semiconductor test technology, or (v) Advantest or Astronics.” When the

arbitrator rejected the Arbitration Respondents’ objection to the subpoenas 
23

including individuals who are not employed by Lattice or the parties, he 

implicitly acknowledged they were discovery subpoenas in his finding that

“Kabbani testified that he communicated with these individuals regarding 

Lattice, as such, they are likely to have discoverable information.” (Italics 

added.)

There also is no evidence in the record showing Kabbani communicated 

with Appellants using these other messaging services. In fact, citing 

Kabbani’s deposition transcript, Appellants’ counsel informed the arbitrator 

that Kabbini testified he did not remove any other applications from his 

phone before turning it over for forensic imaging. Rather, the arbitrator

speculated “Kabbani deleted individual messages or communications on other 

applications as a regular practice” and concluded that “expanding the scope 

beyond WhatsApp [was] reasonable and avoid[ed] issuing a later subpoena to 

these individuals for additional documents.” Even assuming Kabbani and 

Appellants had used a non-WhatsApp messaging platform, there is no 

evidence in the record showing Kabbani deleted any messages existing on 

those platforms and thus Advantest could seek such evidence from the 

Arbitration Respondents directly, rather than from the nonparty Appellants. 

The subpoenas also seek documents in five broad categories. For 

example, the term “finances” is so broad as to potentially refer to financial 

information that is entirely irrelevant to this arbitration proceeding such as 

how much Lattice paid its employees. Assuming the term “finances” refers to 

financial statements like cash flow statements, income statements, profit and 

loss statements, and balance sheets, Advantest has not explained why it 

cannot seek this information directly from the Arbitration Respondents.

In their arbitration agreement, Advantest and the Arbitration

Respondents did not agree to the full panoply of discovery under California’s 
24

Civil Discovery Act (§ 2016.010 et seq.). They are bound by their agreement. 

Our independent review of the subpoenas and the record leading to their 

issuance shows their clear purpose was for discovery. Because discovery is 

not a permissible purpose of an arbitration hearing subpoena, the arbitrator 

abused his discretion by overstepping his statutory authority under section 

1282.6. Accordingly, under the specific facts presented here, we conclude the 

trial court erred when it denied Appellants’ petition to vacate the arbitration 

discovery order and entered judgment in Advantest’s favor.

DISPOSITION

The judgment is reversed and the trial court is directed to enter an order 

granting Appellants’ petition to vacate the arbitration discovery order. 

Appellants are entitled to their costs on appeal.

DO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O’ROURKE, J.
25

APPENDIX

A. 

Definitions

1. “Advantest America” means Advantest America, Inc. and its 

directors, officers, managers, members, current and former 

employees, counsel, agents, consultants, representatives, and any 

other persons acting on behalf of any of the foregoing, and its 

affiliates, parents, subsidiaries, divisions, joint ventures, licensees, 

franchisees, assigns, predecessors and successors in interest, and 

any other legal entities, whether foreign or domestic, that are 

owned or controlled by these entities and all predecessors and 

successors in interest to such entities. “Advantest America” should

not be interpreted to include Samer Kabbani.

2. “Advantest Test Solutions” or “ATS” means Advantest Test Solutions, 

Inc. and its directors, officers, managers, members, current and 

former employees (with the exception of Samer Kabbani), counsel, 

agents, consultants, representatives, and any other persons acting on 

behalf of any of the foregoing, and its affiliates, parents, subsidiaries, 

divisions, joint ventures, licensees, franchisees, assigns, predecessors 

and successors in interest, and any other legal entities, whether 

foreign or domestic, that are owned or controlled by these entities and

all predecessors and successors in interest to such entities.

3. “Advantest” means, collectively, Advantest America and Advantest

Test Solutions, as defined above.

4. “Astronics” means Astronics Corporation and its directors, officers,

managers, members, current and former employees (with the 

exception of Samer Kabbani), counsel, agents, consultants, 

representatives, and any other persons acting on behalf of any of the 

foregoing, and its affiliates, parents, subsidiaries, divisions, joint 

ventures, licensees, franchisees, assigns, predecessors and successors 

in interest, and any other legal entities, whether foreign or domestic, 

that are owned or controlled by these entities and all predecessors 

and successors in interest to such entities.
26

5. “DUT” means device under test, as commonly understood in the

semiconductor test industry.

6. “Active thermal interposer” or “ATI” or “interposer” broadly refers

to an apparatus that serves as a thermally conductive interface 

between a DUT and a semiconductor tester, and generally conforms 

to the shape of the DUT.

7. “Lattice” means Lattice Innovation, Inc. and its directors, officers,

managers, members, current and former employees, counsel, agents, 

consultants, representatives, and any other persons acting on behalf of 

any of the foregoing, and its affiliates, parents, subsidiaries, divisions, 

joint ventures, licensees, franchisees, assigns, predecessors and 

successors in interest, and any other legal entities, whether foreign or

domestic, that are owned or controlled by these entities and all 

predecessors and successors in interest to such entities. “Lattice”

includes any divisions, lines of business, operations, or teams relating 

to products, technologies, customers, or other operations performed by 

Lattice Innovation, Inc. prior to its acquisition by AEM and Wavem,

and subsequently continued by AEM and Wavem.

8. “AEM” means AEM Holdings Ltd. and its directors, officers, 

managers, members, current and former employees, counsel, 

agents, consultants, representatives, and any other persons acting 

on behalf of any of the foregoing, and its affiliates, parents, 

subsidiaries, divisions, joint ventures, licensees, franchisees, 

assigns, predecessors and successors in interest, and any other legal 

entities, whether foreign or domestic, that are owned or controlled 

by these entities and all predecessors and successors in interest to 

such entities.

9. “D&K Engineering” means D&K Engineering, Inc. and its directors,

officers, managers, members, current and former employees, 

counsel, agents, consultants, representatives, and any other persons

acting on behalf of any of the foregoing, and its affiliates, parents, 

subsidiaries, divisions, joint ventures, licensees, franchisees, assigns, 

predecessors and successors in interest, and any other legal entities, 

whether foreign or domestic, that are owned or controlled by these 

entities and all predecessors and successors in interest to such 

entities.
27

10. “FusionX” means FusionX Ventures and all its partners, officers, 

managers, members, current and former employees, counsel, 

agents, consultants, representatives, and any other persons acting 

on behalf of any of the foregoing, and its affiliates, parents, 

subsidiaries, divisions, joint ventures, licensees, franchisees, 

assigns, predecessors and successors in interest, and any other legal 

entities, whether foreign or domestic, that are owned or controlled 

by these entities and all predecessors and successors in interest to 

such entities.

11. The terms “relating to,” “relate to,” “referring to” and “refer to”

mean relating to, reflecting, referring to, concerning, mentioning,

pertaining to, evidencing, involving, describing, discussing, 

commenting on, embodying, responding to, supporting, 

contradicting, or constituting (in whole or in part), as the context 

makes appropriate.

12. The terms “include” and “including” means including without

limitation.

13. The term “all” includes and encompasses “any” and “each.”

14. The terms “or” and “and” shall be read in the conjunctive and in the

disjunctive wherever they appear, and neither of these words shall be 

interpreted to limit the scope of these Interrogatories.

15. Use of the singular shall be read as including the plural and viceversa.

16. Use of a verb in any tense shall be construed as the use of the verb in

all other tenses.
28

Schedule A – Document Requests

Document Requests

1. All messages in your possession, custody, or control exchanged using 

WhatsApp, SMS, MMS, iMessage, Signal, Telegram, Wickr, WeChat, 

and/or any other messaging service or platform dating from May 1,

2017 to December 31, 2020, and concerning or relating to

(i) Lattice’s finances, (ii) Lattice’s business in the semiconductor test

industry, (iii) ATI- related technology, (iv) semiconductor test 

technology, or (v) Advantest or Astronics, including all messages sent

to or from employees or independent contractors associated with Mr. 

Kabbani, D&K Engineering, FusionX, Lattice, AEM, or any agents of 

the foregoing parties.

2. All correspondence sent or received from all email accounts 

controlled or accessible by you (including personal email accounts),

other than a Lattice email account, dating from May 1, 2017 to 

December 31, 2020, and concerning or relating to (i) Lattice’s 

finances, (ii) Lattice’s business in the semiconductor test industry, 

(iii) ATI-related technology, (iv) semiconductor test technology, or 

(v) Advantest or Astronics.