Confidentiality and Discovery within FINRA Arbitration
Within a FINRA Arbitration, If a party objects to document production on grounds of privacy or confidentiality, arbitrators or one of the parties may suggest a stipulation between the parties that the documents in question will not be disclosed or used in any manner outside of the arbitration of the particular case, or the arbitrators may issue a confidentiality order. When deciding contested requests for confidentiality orders, arbitrators will consider the competing interests of the parties. The party asserting the confidentiality has the burden of establishing that the documents in question require confidential treatment. Arbitrators will not issue an order or use a confidentiality agreement to require parties to produce documents otherwise subject to an established privilege, including the attorney-client privilege and the attorney work product doctrine.
Concerns about confidentiality and privilege might also be raised regarding subpoenas issued to non-parties. As a matter of practice, FINRA permits a non-party to file an objection to a subpoena served upon the non-party. The arbitrator may set up a conference call with a non-party and the parties to discuss the non-party’s objection to the subpoena. FINRA staff advises the non-party and the parties of the arbitrator’s decision. Non-parties also may ask the arbitrators to resolve questions concerning who pays the costs incurred as a result of producing subpoenaed documents.
About the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator. He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment. He is also a Mediator and Arbitrator for FINRA.
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