Legal Blasts (and Unrelated Baseball Opening Day Memories)

Thanks to my colleague Eric Jorgensen for this week's legal portion.

Returning to the question of whether and to what extent parties to an arbitration can protect materials generated and facts uncovered in the arbitration from subsequent disclosure to third parties, we see that surprisingly little case law exists on this issue (and none of it comes from California). The leading federal case seems to be United States v. Panhandle Eastern Corp., 118 F.R.D. 346 (D. Del. 1988), in which the court held that arbitration communications are discoverable and admissible and refused to grant an order protecting them under Rule 26(c). In Panhandle, a pipeline company sought to prevent the disclosure of documents relating to an arbitration held in Geneva, on the (somewhat vague) ground that such disclosure would damage its international business relationships. Specifically rejecting the argument that internal arbitration rules require confidentiality or that a "general understanding" of confidentiality by the parties (as opposed to an explicit confidentiality provision) could justify a protective order, and concluding that the company failed to meet is burden to establish "good cause" for a protective order under Rule 26(c), the court ordered that the material be produced. In Lawrence E. Jaffee Pension Plan v. Household International, Inc., 2004 WL 1821968 (D. Colo. Aug. 13, 2004) (unpublished decision), notwithstanding that the arbitration agreement did contain an explicit confidentiality provision, the court still compelled production of arbitration materials, holding that, even with a confidentiality agreement, the moving party would still have to establish "good cause" for a protective order under Rule 26(c), which the moving party had not done.

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Thanks to my colleague Eric Jorgensen for this week's legal portion.

Arbitration is frequently advertised to be a "private" process, and many lawyers make the mistake of assuming that "private" means "confidential" - in other words, that materials generated in the course of the arbitration can be protected from subsequent disclosure through discovery and elsewhere. Not so. In this context, "private" only refers to the ability of third parties to access and observe the proceedings, and to disclose those observations to others, without the consent of the parties, which is extremely limited. (Unlike trials, arbitrations are rarely conducted in public.) Whether the parties have discretion, or can be compelled, to subsequently disclose the details of the proceedings, including, again, evidence and pleadings submitted, transcripts of testimony and other hearings, etc., is a different question entirely.

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I want to thank my colleague, Zachary Mayer, for this week's legal portion.

Identifying potential witnesses is something almost every litigant is asked to do in civil cases. Often this is accomplished through Judicial Council Form Interrogatory No. 12.1, a standard discovery request which, among other things, asks the responding party to identify individuals who witnessed the incident in question or who have knowledge of the incident. The question also asks for the addresses and telephone numbers of such persons. This inquiry has obvious privacy implications. Courts recognize that individuals have a legitimate expectation of privacy in their addresses and telephone numbers. But does that interest trump a litigant's right to obtain a person's contact information for investigative purposes when the other side has disclosed the person as a potential witness? Not according to the court's decision in Puerto v. Superior Court (2008) 158 Cal.App.4th 1242.

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