## Facts

- A fire and explosion occurred aboard the *Contship France* in October 1997 while the vessel was docked in Papeete, Tahiti, originating in lower cargo hold no. 3.
- PPG Industries, Inc. manufactured calcium hypochlorite, packaged it in drums, and loaded four containers of the product aboard the vessel in Norfolk, Virginia in September 1997; the containers were stowed in hold no. 3.
- The vessel’s owner (Conti Zweite Cristallo Schiffarhrts GMBH & Co.) and charterer/operator (Contship Containerlines, Ltd.) alleged PPG’s calcium hypochlorite caused or contributed to the casualty.
- Conti Zweite and Contship separately arbitrated loss allocation issues against each other in London arising from the same incident.
- In the federal action, PPG sought the complete record of the London arbitration; Conti Zweite and Contship withheld: (1) expert submissions, (2) correspondence with the arbitral panel, (3) briefs and written submissions, and (4) hearing transcripts.
- The withholding was based on claimed arbitration confidentiality and the work-product doctrine.

## Issues

1. Whether an asserted obligation of confidentiality arising from a London arbitration, without an identified contractual provision or arbitral rule, bars production of arbitration materials in federal civil discovery.
2. Whether expert submissions, communications to arbitrators, briefs, written submissions, and hearing transcripts from an adversarial arbitration are protected from discovery by the work-product doctrine.

## Decision

- The court granted PPG’s motion to compel.
- The court held that no binding confidentiality obligation was shown that would prevent production in federal discovery.
- The court held that the work-product doctrine did not bar production of the withheld arbitration materials, given their use and exchange in an adversarial arbitration.
- Conti Zweite and Contship were ordered to produce the withheld categories of London arbitration documents.

## Legal Principles

- A generalized assertion that arbitration is confidential, without a demonstrated contractual confidentiality term or applicable institutional rule, does not create a discovery privilege in federal court.
- Federal discovery is governed by the Federal Rules of Civil Procedure; absent a recognized privilege or binding confidentiality agreement, relevant materials are discoverable.
- Work-product protection may be defeated where materials have been disclosed and used in an adversarial proceeding in a manner inconsistent with keeping them from an opponent; such materials may be discoverable by a third party in related litigation.

## Conclusion

The court compelled production of the London arbitration record because the resisting parties failed to establish an enforceable confidentiality basis for withholding, and the work-product doctrine did not shield arbitration submissions and transcripts that had been exchanged and used in an adversarial arbitration concerning the same casualty.


Contship Containerlines, Ltd. v. PPG Indus., Inc., 2003 U.S. Dist. LEXIS 6857 (S.D.N.Y. 2003)