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Review of Confidential and Privileged Information - What are your thoughts?

Arbitrators sometimes need to review highly confidential and privileged information that could potentially bias the Tribunal and/or taint the process. Should an eDiscovery Special Master be appointed independent of the Tribunal to review such discovery?

Please provide your thoughts/comments below.

Comments (9)

I don't think there's any need regarding confidential materials, but it's a very interesting question regarding materials that might be legally privileged. As finder of fact, an arbitrator is in a difficult position making privilege rulings on documents that one party is claiming he should not see at all. Having someone designated solely to make privilege rulings is an interesting suggestion but I've never seen it in practice.

Judge Gerald Harris:

In court cases lay jurors may be deemed to have been irreversibly prejudiced by exposure to inadmissible material. However, judges are presumed to be capable of disregarding such evidence. I suppose the same presumption should be applied to arbitrators.

andrew gerber:

Arbitrators are can receive lots of evidence (e.g., hearsay) that would be inadmissible in court proceedings for much the same reasons, and decide for themselves what weight it should be given. Is there a reason why potentially privileged information should be treated differently?

Louis Coffey:

I suggested an independent reviewer to the parties. They rejected my proposal. Fortunately, it was a tripartite tribunal and I was selected chair by 2 party appointed neutral wings. We advised the parties that I alone would review any privileged evidence to determine if it was admissible. Also fortunately, the issue never arose.


Hon William G Bassler:

In my opinion this adds another layer of expense that in most cases is unnecessary.
I have seen examples where the Chair alone sees the material and decides.
In a critical case an out side person can be employed.
I am not sure it is a real problem. Judges in bench trials by necessity do it all the time.

Robert L. Cowles:

No, I do not feel an Arbitrator needs to have others review his/her case materials. An Arbitrator should be able to review the materials believed to be legally privileged and decide its legal use in your case.

As an Arbitrator we are taught to let all evidence in and then if it is not legally sufficient evidence disregard it when making your decision.

One of the few ways an Arbitration Award can be reversed is to not let in evidence which should have been allowed in evidence.

Melvyn Wiesman:

An arbitrator has an obligation to remain impartial. If the "highly confidential and privileged information" is relevant to the issues before the arbitrator, it should be considered. If it is not relevant, It should be disregarded and not considered. If the arbitrators do not believe they can do so, they should recuse themselves from hearing such a case. Judges and arbitrators are faced with these issues on a regular basis. I see no need to increase the costs to the parties by use of a special master to review the confidential information during discovery.

Jonathan T.K. Cohen:

Retaining an additional arbitrator to address a dispute related to asserted privileged or confidential documents is likely to both increase costs and create additional time delays, since an existing arbitrator and/or one or more panel members will usually have the advantage of assessing documents in the context of a dispute that they have already taken time to understand better than a newly appointed special master.
Though challenging, the existing arbitrator(s) should be able to avoid consideration of excluded documents, and potential bias, after documents are determined to be legally privileged and/or confidential after an In Camera review is complete. If this type of evidence dispute is presented to a panel, the risk of extra costs, or potential bias by the panel, could be reduced if all or part of the admissibility assessment is delegated to one panel member only.

I don't think this measure passes the cost-benefit test. If an arbitrator doesn't think his or her impartiality will survive examination of such documents, that arbitrator should withdraw.

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