Chapter 13 - § 13.2 • CONFIDENTIALITY AND PRIVILEGE

• Jurisdiction: Colorado

§ 13.2 • CONFIDENTIALITY AND PRIVILEGE

Many persons incorrectly assume that all aspects of an arbitration are confidential. To the contrary, unless otherwise agreed to by the parties, the only confidentiality rules are as to arbitrators.

The CRUAA, C.R.S. § 13-22-217 (2016), deals with witnesses, subpoenas, depositions, and discovery:

(5) An arbitrator may issue a protective order to prevent the disclosure of privileged information, confidential information, trade secrets, and other information protected from disclosure to the extent a court could if the controversy were the subject of a civil action.

The FAA does not have an equivalent provision. AAA Commercial Arbitration Rule R-34(c) specifically provides that the arbitrator "shall" take into account applicable principles of legal privilege. This is also the common law, meaning generally that the law of privilege shall be applied in arbitration the same as in a court of law.

The work-product privilege (some suggest the doctrine is not a "privilege") today is a court rule, but has common law roots and is no doubt applicable in arbitration as in judicial proceedings.⁹

Generally, while the arbitrator may have a duty of confidentiality, absent agreement, the parties do not have a duty of confidentiality.¹⁰ The Fifth Circuit has enforced a provision in arbitration clauses providing the proceedings are confidential.¹¹ Other courts in certain circumstances have held a confidentiality agreement is unenforceable as being unconscionable.¹²

Generally, a court will not seal papers, etc. of an arbitration.¹³ Depending upon what is filed with the court, the confidentiality benefit of arbitration may, in part, be lost.

Neither the FAA nor the CRUAA mentions confidentiality or privilege with respect to the arbitration proceedings, documents produced, depositions taken, pleadings, arbitration hearing, confirmation, and vacatur, and appeal.

Arbitration, of course, is a product of agreement of the parties, and the parties can agree to what is or is not confidential. Privilege, on the other hand, is a judicial rule of evidence that defines what may not be admitted into evidence, even though it is relevant and material. Lastly, "privacy" is often referred to in the arbitration context. It too, is not referred to in the arbitration statues. The term as used generally refers to attendance at the hearing, and the execution of strangers to the proceedings.

The parties can agree as to the privacy of the proceedings and the...