Arbitration Confidentiality Agreement

ARBITRATION CONFIDENTIALITY AGREEMENT

IMPORTANT USE NOTE

Arbitration is not automatically subject to one universal rule making every filing, hearing, and award confidential. Provider rules differ, and some provisions bind the administrator or arbitrator without imposing the same obligation on the parties. This Agreement creates party obligations only to the extent permitted by the arbitration agreement, the rules selected for the case, the Arbitrator's orders, and applicable law. It does not by itself seal a court filing or bind a court, regulator, subpoena issuer, or non-signatory.

Before use, identify the governing arbitration agreement, provider and ruleset, governing state law, court-sealing rules, regulatory duties, and any public-policy restrictions on confidentiality.

CASE INFORMATION

Arbitration Administrator: [AAA/JAMS/Other]

Case Number: [CASE NUMBER]

Case Caption:

[CLAIMANT NAME],
Claimant,

v.

[RESPONDENT NAME],
Respondent.

Effective Date: [DATE]

PARTIES

This Arbitration Confidentiality Agreement ("Agreement") is entered into by and among:

Claimant: [CLAIMANT FULL LEGAL NAME] ("[ABBREVIATION]")
Represented by: [LAW FIRM NAME]

Respondent: [RESPONDENT FULL LEGAL NAME] ("[ABBREVIATION]")
Represented by: [LAW FIRM NAME]

Arbitrator: [ARBITRATOR NAME]

(Each a "Party" and collectively, the "Parties")

RECITALS

A. The Parties are engaged in binding arbitration proceedings as identified above (the "Arbitration").

B. In connection with the Arbitration, the Parties will exchange documents, information, and other materials, some of which may contain confidential, proprietary, or sensitive information.

C. The Parties wish to establish terms governing the use, disclosure, and protection of Confidential Information exchanged during the Arbitration.

D. This Agreement is intended to facilitate the free exchange of information necessary for the fair and efficient resolution of the dispute while protecting legitimate confidentiality interests.

NOW, THEREFORE, the Parties agree as follows:

ARTICLE 1: DEFINITIONS

1.1 "Confidential Information"

"Confidential Information" means any document, testimony, information, or other material disclosed or produced in connection with the Arbitration that:

(a) Is designated as "CONFIDENTIAL" by the producing or disclosing Party; or

(b) Is designated as "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" by the producing or disclosing Party; or

(c) Relates to trade secrets, proprietary business information, or non-public financial information; or

(d) Contains personal identifying information of individuals; or

(e) Is subject to any other legally recognized privilege or protection.

1.2 "CONFIDENTIAL"

Information designated "CONFIDENTIAL" may be disclosed to:

• Counsel for the Parties and their staff
• The Parties and their officers, directors, and employees with a need to know
• Experts and consultants retained for the Arbitration
• The Arbitrator and arbitration administrator
• Court reporters and interpreters
• Witnesses during examination
• Others by agreement or Arbitrator order

1.3 "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY"

Information designated "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" may be disclosed only to:

• Outside counsel for the Parties and their staff
• Experts and consultants retained for the Arbitration (who are not employees of any Party)
• The Arbitrator and arbitration administrator
• Court reporters and interpreters
• Others by agreement or Arbitrator order

"HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" information may NOT be disclosed to the Parties themselves unless specifically authorized by the producing Party or the Arbitrator.

1.4 "Document"

"Document" means any written, recorded, or graphic matter, including electronically stored information, produced or disclosed in the Arbitration.

1.5 "Producing Party"

"Producing Party" means the Party that produces, discloses, or designates information as Confidential Information.

1.6 "Receiving Party"

"Receiving Party" means any Party or person who receives Confidential Information.

ARTICLE 2: DESIGNATION OF CONFIDENTIAL INFORMATION

2.1 Designation of Documents

Documents may be designated as Confidential Information by marking each page with the appropriate legend:

• "CONFIDENTIAL"
• "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY"

2.2 Designation of Testimony

Testimony may be designated as Confidential Information by:

(a) Stating on the record during the deposition or hearing that specific testimony is confidential; or

(b) Providing written notice to all Parties within [14] days of receipt of the transcript identifying the specific pages and lines to be designated.

Until designation, transcripts shall be treated as "CONFIDENTIAL."

2.3 Designation of Other Information

Other information (oral communications, electronic data, physical items) may be designated by written notice at or before the time of disclosure.

2.4 Good Faith Designation

Designations shall be made in good faith. A Party shall designate information as Confidential Information only if it reasonably believes the information warrants protection under the standards set forth in this Agreement.

2.5 Failure to Designate

Failure to designate information as confidential at the time of production does not waive the right to designate it later. A Party may designate previously produced information by written notice.

ARTICLE 3: USE OF CONFIDENTIAL INFORMATION

3.1 Limited Use

Confidential Information shall be used solely for purposes of the Arbitration and shall not be used for any other purpose, including:

(a) Any business purpose unrelated to the Arbitration
(b) Competitive advantage
(c) Any other litigation or proceeding (except to enforce this Agreement or the arbitration award)
(d) Publicity or public relations
(e) Any other improper purpose

3.2 No Disclosure

Except as permitted by this Agreement, no Receiving Party shall disclose Confidential Information to any person or entity.

3.3 Safeguarding

Each Receiving Party shall take reasonable measures to safeguard Confidential Information, including:

(a) Limiting access to authorized persons
(b) Storing documents securely
(c) Using password protection for electronic files
(d) Maintaining access logs where appropriate
(e) Training personnel on confidentiality obligations

ARTICLE 4: PERMITTED DISCLOSURES

4.1 Disclosure to Authorized Persons

Confidential Information may be disclosed to the following persons, subject to the restrictions for "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" information:

For "CONFIDENTIAL" Information:

(a) Outside counsel for the Parties and their partners, associates, paralegals, and staff

(b) In-house counsel for the Parties

(c) Officers, directors, and employees of the Parties with a need to know

(d) Experts, consultants, and vendors retained to assist in the Arbitration

(e) The Arbitrator, arbitration administrator, and their staff

(f) Court reporters, videographers, and interpreters

(g) Witnesses, to the extent necessary for examination

(h) The court, if judicial assistance is sought in connection with the Arbitration

For "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" Information:

(a) Outside counsel and their staff only (not in-house counsel or Party employees)

(b) Independent experts and consultants (not employed by any Party)

(c) The Arbitrator and arbitration administrator

(d) Court reporters and interpreters

(e) Others only by written agreement or Arbitrator order

4.2 Acknowledgment Requirement

Before any expert, consultant, or other non-Party receives Confidential Information, such person shall execute the Acknowledgment attached as Exhibit A, agreeing to be bound by this Agreement.

4.3 Disclosure to Witnesses

A Party may disclose Confidential Information to a witness to the extent necessary for examination, provided:

(a) The witness is informed of the confidential nature of the information
(b) The witness does not retain copies
(c) The disclosure is limited to what is reasonably necessary

4.4 Court Filings

Before filing Confidential Information in court, the filing Party shall comply with all applicable redaction and sealing rules and shall seek any required sealing or protective order. A confidentiality designation or this Agreement alone does not authorize filing under seal. If sealing is denied, the filing Party shall use lawful redaction or other protective measures to the extent available and shall provide notice under Article 8 when practicable.

ARTICLE 5: EXCLUSIONS FROM CONFIDENTIAL INFORMATION

5.1 Not Confidential Information

The following shall not be treated as Confidential Information, notwithstanding any designation:

(a) Information that is or becomes publicly available through no fault of the Receiving Party

(b) Information that the Receiving Party lawfully possessed before receiving it in the Arbitration

(c) Information that the Receiving Party independently developed without use of Confidential Information

(d) Information that the Receiving Party lawfully obtained from a third party without restriction

5.2 Burden of Proof

The Receiving Party asserting an exclusion bears the burden of proving its applicability.

ARTICLE 6: CHALLENGES TO DESIGNATION

6.1 Good Faith Conference

If a Receiving Party believes that a designation is improper, it shall first confer in good faith with the Producing Party to attempt to resolve the dispute.

6.2 Motion to Arbitrator

If the Parties cannot resolve a designation dispute, either Party may submit the issue to the Arbitrator by written motion.

6.3 Burden of Proof

The Producing Party bears the burden of establishing that the designation is proper.

6.4 Pending Resolution

The challenged designation shall remain in effect until the Arbitrator rules otherwise or the Parties agree to a different designation.

ARTICLE 7: FILING AND USE IN ARBITRATION

7.1 Use in Hearings

Confidential Information may be used in arbitration hearings. If "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" information is used, the Parties shall take appropriate measures (e.g., closed sessions, redactions) to limit disclosure.

7.2 Submission to Arbitrator

Confidential Information may be submitted to the Arbitrator. Submissions containing Confidential Information shall be marked accordingly.

7.3 Transcripts and Records

Hearing transcripts and records containing Confidential Information shall be treated as confidential.

7.4 Arbitration Award

The Arbitrator may include Confidential Information in the award to the extent necessary. The Parties may request a redacted version for any permitted filing or disclosure, subject to the governing rules and the Arbitrator's authority.

ARTICLE 8: LEGALLY REQUIRED DISCLOSURE

8.1 Subpoenas and Legal Process

If a Receiving Party receives a subpoena, court order, or other legal process requiring disclosure of Confidential Information, it shall:

(a) Provide prompt written notice to the Producing Party (at least [10] business days before disclosure, if possible)

(b) Provide a copy of the subpoena or order

(c) Cooperate with the Producing Party's efforts to obtain a protective order or other relief

(d) Disclose only that Confidential Information specifically required

(e) Request confidential treatment from the requesting authority

8.2 Regulatory Disclosure

If disclosure is required by a regulatory authority, the Receiving Party shall follow the same procedures as Section 8.1.

8.3 No Liability

A disclosure required by law shall not, by itself, constitute a breach if the Receiving Party complies with this Article 8 to the extent legally permitted. Nothing in this Agreement authorizes withholding, delay, or obstruction of lawful process.

ARTICLE 9: RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION

9.1 At Conclusion of Arbitration

Within [60] days after the conclusion of the Arbitration (including any appeal or enforcement proceedings), each Receiving Party shall:

(a) Return all Confidential Information to the Producing Party; or

(b) Destroy all Confidential Information and certify destruction in writing.

9.2 Exceptions

A Receiving Party may retain:

(a) One archival copy for legal compliance purposes, to be kept confidential and used only to establish compliance with this Agreement

(b) Copies required by law, regulation, or professional responsibility rules

(c) Electronic copies that exist on backup systems, provided they are not accessed except as required for system maintenance

9.3 Work Product

Counsel may retain work product containing or reflecting Confidential Information, subject to the continuing confidentiality obligations of this Agreement.

ARTICLE 10: INADVERTENT DISCLOSURE

10.1 No Waiver

As between the Parties, inadvertent production of attorney-client privileged or work-product material shall not constitute a waiver if the Producing Party promptly invokes this Article and satisfies any nonwaiver requirements that applicable law makes controlling.

10.2 Clawback Procedure

If a Producing Party discovers that it inadvertently produced privileged or protected information:

(a) It shall promptly notify the Receiving Party in writing

(b) The Receiving Party shall promptly return or destroy all copies

(c) The Receiving Party shall not use the inadvertently produced information

(d) If the information has been disclosed to others, the Receiving Party shall take reasonable steps to retrieve it

The Receiving Party may preserve the material under seal solely to present a privilege dispute to the Arbitrator or a court with authority to decide it. Return, sequestration, or destruction does not prevent the Receiving Party from challenging the privilege claim through the procedure selected for the case.

10.3 Federal Rule of Evidence 502

This Article is a party agreement under Federal Rule of Evidence 502(e) when that Rule applies and therefore binds only the Parties unless incorporated into a court order. If protection against waiver in other federal or state proceedings is needed, the Parties shall consider jointly requesting an order under Rule 502(d) from a federal court with authority to enter it. Rule 502(b) separately conditions federal nonwaiver for inadvertent disclosure on reasonable preventive steps and prompt reasonable corrective steps.

10.4 Other Privilege Law

State privilege law, arbitral rules, and court orders may impose different or additional requirements. Counsel shall identify and comply with the controlling law rather than assuming that Rule 502 governs every private arbitration.

ARTICLE 11: CONFIDENTIALITY OF ARBITRATION PROCEEDINGS

Provider confidentiality provisions are not identical. For example, JAMS Comprehensive Rule 26 addresses confidentiality and privacy, while AAA's current Commercial Rules and ethics framework include confidentiality duties whose scope must be checked in the edition governing the case. The selections below are contractual obligations of the Parties, not a statement that all arbitrations are confidential by default.

11.1 Confidential Proceedings

The Parties agree that the following aspects of the Arbitration shall be confidential:

☐ The existence of the Arbitration
☐ All pleadings, briefs, and submissions
☐ All discovery materials
☐ All hearing proceedings
☐ The arbitration award
☐ All settlement discussions

11.2 Exceptions

The Parties may disclose information about the Arbitration:

(a) To enforce the award or this Agreement
(b) As required by law or regulation
(c) To legal, tax, and financial advisors under duty of confidentiality
(d) To insurers with a legitimate interest
(e) By mutual written consent

11.3 Public Statement

If asked about the Arbitration, the Parties may state only:

"The matter is being resolved through private arbitration."

After conclusion:

"The matter has been resolved."

ARTICLE 12: REMEDIES FOR BREACH

12.1 Irreparable Harm

The Parties acknowledge that unauthorized disclosure of Confidential Information may cause harm for which monetary damages may be inadequate. This acknowledgment does not eliminate any element that applicable law requires for equitable relief.

12.2 Injunctive Relief

In the event of a breach or threatened breach, the injured Party shall be entitled to seek:

(a) Temporary restraining orders
(b) Preliminary and permanent injunctions
(c) Specific performance

The court or Arbitrator shall determine entitlement to relief, notice, security, and the scope of any order under applicable law. In federal court, Federal Rule of Civil Procedure 65 governs temporary restraining orders and preliminary injunctions, including security.

12.3 Monetary Damages

The injured Party may also seek monetary damages recoverable under the governing law and this Agreement.

12.4 Attorneys' Fees

To the extent enforceable under governing law, the prevailing Party in an action to enforce this Agreement shall be entitled to recover reasonable attorneys' fees and costs.

12.5 Arbitrator Authority

To the extent authorized by the arbitration agreement, the applicable provider rules, and law, the Arbitrator may impose sanctions for violations of this Agreement during the Arbitration. Under current AAA Commercial Rule 60, sanctions require a Party's request and an opportunity to respond; JAMS Comprehensive Rule 29 authorizes appropriate sanctions for noncompliance with the rules or an Arbitrator order. Available relief may include:

(a) Monetary sanctions
(b) Adverse inference instructions
(c) Preclusion of evidence
(d) Other appropriate relief

No sanction may exceed the authority or procedural safeguards supplied by the controlling rules and law.

ARTICLE 13: TERM AND SURVIVAL

13.1 Duration

This Agreement shall remain in effect until [5] years after the conclusion of the Arbitration, including any appeal or enforcement proceedings.

13.2 Trade Secrets

Notwithstanding Section 13.1, contractual obligations regarding trade secrets shall continue for as long as the information qualifies as a trade secret under applicable law. Under 18 U.S.C. § 1839(3), federal protection requires reasonable secrecy measures and independent economic value from the information not being generally known or readily ascertainable through proper means.

13.3 Survival

The obligations of this Agreement shall survive termination of the Arbitration.

ARTICLE 14: GENERAL PROVISIONS

14.1 Governing Law

This Agreement shall be governed by the laws of the State of [STATE].

14.2 Jurisdiction

Any dispute regarding this Agreement shall be submitted to the Arbitrator while the Arbitration is ongoing to the extent the arbitration agreement and applicable law give the Arbitrator authority over that dispute. Otherwise, the dispute shall be submitted to a court of competent jurisdiction.

14.3 Amendment

This Agreement may be amended only in writing signed by all Parties.

14.4 Waiver

No waiver of any provision shall be effective unless in writing. Failure to enforce any provision shall not constitute a waiver.

14.5 Severability

If any provision is held invalid, the remaining provisions shall remain in effect.

14.6 Entire Agreement

This Agreement constitutes the entire agreement regarding confidentiality in the Arbitration and supersedes all prior agreements on this subject.

14.7 Counterparts

This Agreement may be executed in counterparts. The Parties agree to accept electronic signatures to the extent permitted by applicable law.

14.8 Binding Effect

This Agreement binds the Parties and their successors, assigns, officers, directors, employees, agents, and representatives.

EXECUTION

IN WITNESS WHEREOF, the Parties have executed this Arbitration Confidentiality Agreement.

CLAIMANT:

[CLAIMANT NAME]

By: ______________________________
Name: [AUTHORIZED SIGNATORY]
Title: [TITLE]
Date: _______________

RESPONDENT:

[RESPONDENT NAME]

By: ______________________________
Name: [AUTHORIZED SIGNATORY]
Title: [TITLE]
Date: _______________

COUNSEL SIGNATURES

Counsel for Claimant:

______________________________
[ATTORNEY NAME]
[FIRM]
Date: _______________

Counsel for Respondent:

______________________________
[ATTORNEY NAME]
[FIRM]
Date: _______________

ARBITRATOR APPROVAL (Optional)

I have reviewed this Confidentiality Agreement and approve its terms for use in this Arbitration.

______________________________
[ARBITRATOR NAME]
Date: _______________

EXHIBIT A: ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

ACKNOWLEDGMENT OF CONFIDENTIALITY OBLIGATIONS

I, [NAME], declare as follows:

1. Engagement. I have been retained by [PARTY NAME] as a [EXPERT WITNESS / CONSULTANT / VENDOR / OTHER] in the arbitration matter of [CLAIMANT] v. [RESPONDENT], Case No. [NUMBER].

2. Receipt of Agreement. I have received and read the Arbitration Confidentiality Agreement dated [DATE] (the "Agreement").

3. Understanding. I understand the terms of the Agreement, including the definitions of "CONFIDENTIAL" and "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" information.

4. Agreement to Be Bound. I agree to be bound by all terms of the Agreement as if I were a signatory.

5. Limited Use. I agree to use Confidential Information solely for purposes of the Arbitration and not for any other purpose.

6. No Disclosure. I agree not to disclose Confidential Information to any person not authorized under the Agreement.

7. Safeguarding. I agree to take reasonable measures to safeguard Confidential Information in my possession.

8. Return/Destruction. I agree to return or destroy all Confidential Information upon conclusion of my engagement or the Arbitration, whichever is earlier.

9. Jurisdiction. I consent to the jurisdiction identified in the Agreement for any action to enforce this Acknowledgment, subject to applicable law.

10. Remedies. I understand that I may be liable for breach of this Acknowledgment, including injunctive relief and monetary damages.

Executed on [DATE] at [CITY, STATE].

______________________________
Signature

______________________________
Printed Name

______________________________
Title/Position

______________________________
Company/Organization

______________________________
Address

______________________________
Email

______________________________
Phone

CONFIDENTIAL INFORMATION LOG (Optional)

LEGAL REFERENCES:

• Federal Arbitration Act, 9 U.S.C. § 2 and §§ 9-11 (where applicable)
• Federal Rule of Evidence 502 — especially subdivisions (b), (d), (e), and (f)
• Federal Rule of Civil Procedure 5.2 (federal-court redaction and sealing)
• Federal Rule of Civil Procedure 65 (federal injunctive-relief procedure and security)
• Defend Trade Secrets Act civil remedy, 18 U.S.C. § 1836 and definitions, § 1839
• Current AAA Commercial Arbitration Rules (confirm the edition governing the case; current Commercial Rule 60 addresses sanctions)
• JAMS Comprehensive Arbitration Rules (effective June 1, 2021; Rules 26 and 29)
• Applicable state privilege, trade-secret, contract, electronic-signature, sealing, and injunctive-relief law selected for the case