Ever wonder whether courts will respect arbitration panel confidentiality orders? A Texas federal district court took a hard look at one such order recently and ruled on public policy grounds that there was a presumption in favor of open access but, in recognition of the reinsurer’s confidentiality obligations in this case, permitted the reinsurer to refile its summary judgment motion and evidence with the specific pages containing confidential material excised and filed separately under seal.
In this interesting case testing the authority of a panel’s confidentiality order, a reinsurer filed a motion to file under seal a summary judgment motion and accompanying documents in litigation against a reinsurance broker alleging negligence and breach of fiduciary duty among other causes of action. The reinsurer was raising a collateral estoppel argument grounded in certain liability issues that had been previously resolved in a final arbitration award against the reinsurer’s cedent. The reinsurer moved to seal its summary judgment motion because it contained information based on or included documents subject to the arbitration panel’s “Confidentiality Agreement and Order,” which provided that any information disclosed in connection with court proceedings relating to any aspect of that arbitration was to be filed under seal.
Citing policy concerns about the public’s right of access to judicial records and proceedings, the district court strived to balance the common law right of access against any interests favoring non-disclosure, with the presumption favoring open access. Thus, the court was “reluctant” to seal over 450 pages of briefing and evidence and opted for a more conservative approach. Mindful of the reinsurer’s obligations under the arbitral confidentiality order, the court permitted the reinsurer to refile its motion and supporting documents but required it to indicate in the court record that those pages containing confidential information were located in a separately sealed envelope, “thus ensuring public access to all portions of the Motion, Brief, and Appendix that do not contain confidential information.”
TIG Insurance Co. v. AON Re, Inc., Civil Action No. 3:04-CV-1307-B, 2004 U.S. Dist. LEXIS 24795 (N.D. Tex. Dec. 9, 2004).