Blog #14 ("Private" Arbitrations Are Not Necessarily "Confidential" Arbitrations, part 2 of 2; Kevin Kennedy)
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 Aug. 13, 2004) (unpublished decision), notwithstanding that the arbitration agreement did contain an explicit confidentiality provision, the court still compelled production of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.