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Confidentiality Order – Attorneys’ Eyes Only

Friday, November 07, 2025 9:13 AM | Anonymous

What's an 'Eyes Only' Package? - ClearanceJobs

Where the parties disagree on whether a confidentiality order in a case should permit Attorneys' Eyes Only designations, what should arbitrators do?

What are your thoughts?

Comments

  • Friday, November 07, 2025 3:24 PM | Robert L. Arrington
    I would hear argument.
    Link  •  Reply
  • Friday, November 07, 2025 3:29 PM | David J. Hoffman
    I think where I would ultimately land is allowing the "attorneys' eyes only designation" but also allowing a challenge procedure.
    Link  •  Reply
  • Friday, November 07, 2025 3:31 PM | Cathleen Bolek
    If both parties are corporations with in-house legal counsel who can review the documents, an Attorneys' Eyes Only provision is feasible. But where one party is an individual, an Attorneys' Eyes Only provision raises significant ethical consideration for the individual's attorney, who is prohibited from sharing often meaningful information with their client. Lawyers are ethically bound to share case information with their clients to enable their client to make informed decisions about their case and an Attorneys Eyes Only provision interferes with that relationship.
    Link  •  Reply
  • Friday, November 07, 2025 3:32 PM | Andrew Abramson
    My view is that a for attorneys eyes only designation serves to impede upon an attorney’s ethical duties under Rule of Professional Conduct 1.4 which requires an attorney to explain all facts and documents pertaining to the case with a client to make informed decisions. Thus, if one side objects I would strike the provision assuming that there is a requirement that the parties themselves are required to sign off on the confidentiality of the designated documents
    Link  •  Reply
    • Friday, November 07, 2025 3:50 PM | David Slaughter
      I share the ethical concerns and would steer clear of ordering anything that may reflect or impose a restriction on an attorney's duties to his/her client.
      Link  •  Reply
  • Friday, November 07, 2025 3:37 PM | David E. Robbins
    I am troubled by such Orders since it means to me that one can't trust their clients to be honest and to keep the information confidential to the arbitration. If there is that concern, add some "teeth" to the Order with regard its potential violation. Attorneys can't properly represent their clients if they can't discuss everything that they deem relevant.
    Link  •  Reply
  • Friday, November 07, 2025 3:38 PM | Mark Bunim
    Yes, I would have briefing on this dispute, however, at the end of the day AAA R-24 (a) gives the arbitrator the authority to condition any exchange or production of confidential documents and information on appropriate orders to preserve confidentiality. R-45 (b) also authorizes the arbitrator, upon the request of a party (can be only one party) to issue orders concerning confidentiality and to take measures to protect confidential information.
    Link  •  Reply
  • Friday, November 07, 2025 3:41 PM | Joan Marie Quade
    I would want to have them articulate a compelling reason behind why it would be needed in that particular case. If there is a compelling reason articulated for such an order, I would want to know what particular type of documents they expect to give that designation. Then I would decide if proceeding with that designation would affect fundamental fairness to one of the parties or if the designation could cause damage to the party protecting the information. It would be a balancing of interests and a protection of the process. I think there would have to be a very compelling reason to allow this.
    Link  •  Reply
  • Friday, November 07, 2025 3:59 PM | Robert Flack
    Remember that Arbitration is a creature of contract.

    Within an arbitration, a contract can be modified
    by mutual consent.

    However, the Parties may have difficulty binding
    non signatories (AAA Case Mgmt, Neutrals).

    Restricting Clients is nominally problematic but hypothetical; the Parties are the actual decision makers to the Arbitration K.
    Delegating this to their representatives would not be likely. And likely a breach of professional responsibility if attempted.

    The more pressing issue is enforcement. If in Court, confidentiality is challenged. If in ADR, provisions should be made by mutual consent of the Parties. Of course, issues of confidentiality would never ever need to be enforced. Correct?

    .

    Unless there is clarity about consent and enforcement, I would call for
    a hearing.
    Link  •  Reply
  • Friday, November 07, 2025 4:21 PM | DL
    Every case I have been involved with (35 years) has had a Protective Order that included an AEO level.
    I don't see why an arbitration should be any different
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  • Friday, November 07, 2025 4:42 PM | Steven Gerber
    When faced a request for such a provision in an otherwise “regular” or ordinary confidentiality order, if opposed I require the party seeking the clause to apply and meet the standards for one under the applicable U.S. Court of Appeal Circuit, and if there is no USCA Circcuit case, the standard used by the U.S. District Court in the District where the Arbitration will be held.
    Link  •  Reply
  • Friday, November 07, 2025 4:56 PM | David A Kotzian
    I have found such Orders to be very helpful in certain circumstances where the attorney just wants to verify whether the information is relevant to issues in the case. For example, where a sex harassment plaintiff doesn't want the alleged harasser looking through her confidential medical records. Or a corporate defendant doesn't want a former employee who is competing to have a copy of their entire client list. If it's relevant evidence, the parties get to see it.
    Link  •  Reply
  • Saturday, November 08, 2025 6:06 AM | Geoffrey BH
    If there is material pertinent to the arbitration it must be made available to both Parties. The Arbitration agreement is theirs, not the lawyers'. We are NOT in the Court.
    If there is an issue about disclosure, an item may be shown to the Arbitrator in confidence but that is another matter.
    Do not assume that Court processes are helpful in arbitration; originally the A in ADR meant Alternative.
    Link  •  Reply
  • Saturday, November 08, 2025 9:25 AM | Pete Michaelson
    I share the concern about the ethical issues. However, the clients could be required to waive the issue as a condition of the arbitrator’s order.
    Link  •  Reply
  • Saturday, November 08, 2025 10:20 AM | Jesse DINER
    i would take argument and would at least probably allow for review by the parties' experts subject to the experts also signing on to the Confidentiality Agreement.
    Link  •  Reply
  • Sunday, November 09, 2025 11:55 AM | Lawrence Weinstein
    Attorney's Eyes Only provisions can serve the vital purpose of protecting the disclosing party's confidential information from misuse; conversely, such provisions can interfere with the receiving party's ability to obtain a fair hearing. AEO provisions are most defensible when they are intended to prevent a business competitor from using for improper competitive purposes information disclosed in discovery. They are rarely necessary where the receiving party is a consumer or other non-competitor, absent evidence that the receiving party has the improper purpose of disclosing the information outside of the scope of the arbitration. Thus, I would be hesitant to sign a confidentiality agreement containing an AEO provision in a consumer case. On the other hand, AEO provisions are common in cases involving business competitors or where both parties otherwise are companies with in-house counsel. I would and do accept AEO provisions in the latter type of case, provided that (1) the confidentiality agreement contains a mechanism allowing challenges to specific AEO designations; (ii) the confidentiality agreement allows at least one in-house counsel to review AEO-designated materials ; and (iii) there is no persuasive evidence that the designated recipients of AEO materials (whether inside or outside counsel) would not comply with the use and disclosure limitations contained in the confidentiality agreement.
    Link  •  Reply
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