

[Federal Register: April 13, 2007 (Volume 72, Number 71)]
[Notices]               
[Page 18710-18712]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13ap07-91]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55594; File No. SR-NYSE-2005-48]

 
Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing of Amendments No. 1, 2, 3, and 4 Thereto to Proposed 
Rule Change to Amend Rule 619 Pertaining to Subpoenas for the 
Production of Documents and Appearances of Witnesses

April 6, 2007.
    On July 13, 2005, pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ the 
New York Stock Exchange LLC (``NYSE'' or ``Exchange'') filed with the 
Securities and Exchange Commission (``SEC'' or ``Commission'') a 
proposed rule change to amend NYSE Rule 619, pertaining to subpoenas 
for the production of documents and appearance of witnesses. The 
proposed rule change was published for comment in the Federal Register 
on September 26, 2005,\3\ and the Commission received no comments on 
the proposal. On April 18, 2006, November 2, 2006, December 22, 2006, 
and February 8, 2007, the NYSE filed Amendments No. 1, 2, 3, and 4, 
respectively, to revise the rule change as described in Items I, II, 
and III below, which Items have been prepared by the NYSE.\4\ The 
Commission is publishing this notice to solicit comments on the 
proposed rule change, as amended, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 52468 (Sept. 19, 
2005), 70 FR 56201 (Sept. 26, 2005).
    \4\ Amendment No. 1 clarified that only the arbitrator(s) may 
issue subpoenas and delineated the manner in which a party may 
request the issuance of a subpoena. Amendment No. 2 established a 
time frame for the parties to make and respond to objections to the 
requested subpoena and clarified that the arbitrator(s) may not rule 
on such a request until this time period has elapsed. Amendment No. 
3 made technical changes to the rule and clarified that the 
arbitrator(s) must receive copies of any objections to the issuance 
of a subpoena. Amendment No. 4 clarified that a party requesting a 
subpoena may not serve the request or the draft subpoena on a non-
party.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    NYSE is proposing to revise Rule 619, which pertains to subpoenas 
for the production of documents and the appearance of witnesses. Below 
is the text of the proposed rule change. Proposed new language is 
italicized and proposed deletions are in brackets.
* * * * *
    (a) to (e) No change.
    (f) Subpoenas.
    (1) The arbitrator(s) [and any counsel of record to the 
proceedings] may issue subpoenas for the production of documents or the 
appearance of witnesses [shall have the power of the subpoena process 
as provided by law. All parties shall be given a copy of the subpoena 
upon its issuance. The parties shall produce witnesses and present 
proofs to the fullest extent possible without resort to the subpoena 
process.] The party who requests a subpoena must make a written request 
asking the arbitrator(s) to issue a subpoena. The request, along with 
the requested draft subpoena must be served directly on each other 
party in a manner that is reasonably expected to cause the request and 
the requested subpoena to be delivered to all parties on the same day. 
The requesting party may not serve the request or the requested draft 
subpoena on a non-party. The request and the requested subpoena must 
also be filed with the Director of Arbitration, with additional copies 
for each arbitrator, at the same time and in the same manner in which 
they are served on the parties. The parties shall produce witnesses and 
present proof at the hearing whenever possible without using subpoenas. 

    (2) In the event a party receiving such a request objects to the 
scope or propriety of the subpoena, that party shall, within 10 days of 
service of the request, file with the Director of Arbitration, with 
copies to all other parties, written objections, including additional 
copies for each arbitrator. The party seeking the subpoena may respond 
thereto within five days of receipt of the objection. The arbitrator(s) 
appointed shall rule promptly on the

[[Page 18711]]

issuance and scope of the subpoena after the time period for objections 
and replies thereto has elapsed. 
    (3) If the arbitrator(s) issue a subpoena, the party that requested 
the subpoena must serve the subpoena at the same time and in the same 
manner on all parties, and, if applicable, on any non-party receiving 
the subpoena. 
    (4) Any party that receives documents in response to a subpoena 
served upon a non-party shall provide notice to all other parties 
within five days of receipt of the documents. Thereafter, any party may 
request copies of such documents and, if such a request is made, the 
documents must be provided within 10 days following receipt of the 
request. The party requesting the documents shall be responsible for 
the reasonable costs associated with the production of the copies, 
unless the panel determines otherwise.
    (g) No change.
* * * * *

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the NYSE included statements 
concerning the purpose of and basis for the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The NYSE has prepared summaries, set forth in Sections 
A, B, and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
Proposal
    In the initial rule filing, the Exchange proposed to revise NYSE 
Rule 619 to provide for a 10-day notice period requirement before a 
party issues a subpoena to a non-party for pre-hearing discovery. Under 
the proposed rule change only the arbitrator(s) may issue subpoenas for 
the production of documents and the appearance of witnesses. In 
addition, the arbitrator(s), and not the courts, would rule on 
discovery disputes concerning the issuance of subpoenas. The party who 
requests a subpoena would make a written request asking the 
arbitrator(s) to issue a subpoena and would send a copy of the request 
and the requested draft subpoena to the Director of Arbitration, each 
arbitrator, and all parties to the arbitration in a manner reasonably 
expected to result in delivery to everyone on the same day. The 
requesting party may not serve the request or the requested draft 
subpoena on any non-party.
    If a party has an objection to the propriety or scope of the 
subpoena, that party would be required to file objections in writing 
with the Director of Arbitration and send copies to all other parties, 
including each arbitrator, within 10 days of service of the request and 
draft subpoena. The party requesting the subpoena could file a reply to 
the objection within five days of receipt of the objection. The 
arbitrator(s) would determine the propriety and scope of the requested 
subpoena after the time period for filing objections or replies had 
elapsed. If a subpoena is issued by the arbitrator(s), the party that 
requested the subpoena would be required to serve the subpoena at the 
same time and in the same manner on all parties, and, if applicable, on 
any non-party receiving the subpoena.
    Additionally, the proposed rule change provides that any party that 
receives documents in response to a subpoena served upon a non-party 
must provide notice to all other parties within five days of receipt of 
the documents. Thereafter, any party may request copies of those 
documents and, if such a request is made, the documents must be 
provided within 10 days following receipt of the request. The party 
requesting the documents is responsible for the reasonable costs 
associated with the production of the copies, unless the panel 
determines otherwise.
2. Statutory Basis
    NYSE believes that the proposed rule change is consistent with 
Section 6(b)(5) \5\ of the Act in that the rule change promotes just 
and equitable principles of trade by ensuring that members, member 
organizations and the public have a fair and impartial forum for the 
resolution of their disputes.
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    \5\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants or Others

    The Commission published the proposed amendments to Rule 619 (SR-
NYSE-2005-48) in the Federal Register on September 26, 2005. The 
Commission received no comments in response to the proposal.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:
    (A) By order approve the proposed rule change, or
    (B) Institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml.
); or     Send e-mail to rule-comments@sec.gov. Please include File 

Number SR-NYSE-2006-48 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSE-2005-48. This file 
number should be included on the subject line if e-mail is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro/shtml
). Copies of the submission, all subsequent amendments, all 

written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for inspection and 
copying in

[[Page 18712]]

the Commission's Public Reference Room. Copies of such filing also will 
be available for inspection and copying at the principal office of the 
NYSE. All comments received will be posted without change; the 
Commission does not edit personal identifying information from 
submissions. You should submit only information that you wish to make 
available publicly. All submissions should refer to File number SR-
NYSE-2005-48 and should be submitted on or before May 4, 2007.

    For the Commission, by the Division of Market Regulation, 
pursuant to delegated authority.\6\
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    \6\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-7055 Filed 4-12-07; 8:45 am]

BILLING CODE 8010-01-P
