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Attorney-client privilege or attorney work-product doctrine - What are your thoughts?

What are best practices should an arbitrator be called upon to rule on a challenge as to a party's designation and withholding of a particular document from disclosure under the attorney-client privilege or attorney work-product doctrine so as to avoid the possibility of having the arbitrator be tainted by privileged/protected information in advance of the evidentiary hearing?

Please provide your thoughts/comments below.

Comments (10)

Judge Gerald Harris:

Judges are often called upon to rule on the admissibility of evidence even when sitting as the trier of fact. It is presumed that they will be able to ignore the contents of documents which they review and rule inadmissible. The same presumption should be accorded arbitrators. However, if the arbitrator or one of the parties is discomfited by that presumption the solution would be to have the review and rulings made by another arbitrator appointed solely for that limited purpose.

Robert Barras AIA:

Attorney-client privilege is sacred, but I do not know if there are parts of a attorney's work product that can be explored nor how such exploration should happen.

Deanne Wilson:

During the course of a hearing, many are the times that an arbitrator hears or sees testimony or documents that are later ruled inadmissible. After hearing the objection, the arbitrator rules and any inadmissible testimony or document is simply stricken. As an arbitrator or as a judge (17 years), no one has ever raised an issue. But I agree with Judge Harris: If an arbitrator truly feels uncomfortable, she can ask for another arbitrator to be appointed solely for the purpose of making the ruling.

Harriet Derman:

I am in the middle of such an in camera review now. I made sure to remind the parties that I was to be the "trier of fact" and both sides specifically consented.

Robert Pfeilsticker:

The attorney-client privilege is fundamental to the proper functioning of our legal system. This principle must be preserved in arbitration cases. As arbitrators, we must be vigilant against overbroad privilege claims that attempt to shield otherwise discoverable evidence from disclosure. We must remember that evidence is not privileged simply because the privilege is claimed. To assure a full and fair hearing to both parties, we must be committed to undertake the same detailed analysis of the privilege claim as a Court would. The first step is to require counsel to meet and confer in an attempt to resolve the matter, or at a minimum, to narrow down the scope of the documents at issue. Any remaining unresolved claims can, and should, be resolved by the arbitrator through in camera review. In camera review of the subject documents, or if they are voluminous, a sample thereof, is a well-established judicial procedure. It is built into the process that the reviewing judge can remain neutral despite having seen the privileged content. I see no reason to vary this process merely because we arbitrators are not wearing a robe.

Michael S Wilk:

The issue has been addressed a small fraction of the arbitration hearings. My general rule is to aske the parties whether to allow the tribunal to review or do they desire an outside third party. No one has requested an outside third party. If there is a three arbitrator panel, the chair reviews the documents and confers with the other panel members on specific documents,if necessary.

It depends on the degree to which the case is being administered. In a fully administered case, the AAA/ICDR, CPR, ICC, and JAMS can all bring in a special arbitrator to make privilege rulings in short order.

If an arbitrator needs to rule on the attorney client privilege, it seems to me the best solution to allow the parties to have confidence in the arbitrator's neutrality, would be, as prior reactions above state, to simply engage another arbitrator for the single purpose of ruling on the applicability of the privilege.
George D. Marlow

Lawrence W Crispo:

Or The appointment of a discovery referee with the authority by stipulation to make binding rulings.

Judge Andrew Peck:

I agree with Judge Harris

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This page contains a single entry from the blog posted on October 14, 2018 9:22 AM.

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