## Facts

- Gotham Holdings and Health Grades litigated in the Southern District of New York, where Health Grades relied on an arbitration award from a separate arbitration with Hewitt Associates.
- Health Grades produced the award and some arbitration materials in the New York case but refused broader production, invoking a confidentiality clause in its arbitration agreement with Hewitt.
- Gotham sought additional arbitration-related materials and served a Fed. R. Civ. P. 45 subpoena on Hewitt in the Northern District of Illinois, where Hewitt maintained its principal offices.
- The subpoena’s relevance and scope under Fed. R. Civ. P. 26(b)(1) were not disputed; the dispute focused on whether contractual confidentiality barred compliance.
- The district court ordered Hewitt to produce the documents and stayed enforcement pending appeal.
- Hewitt did not oppose production and indicated willingness to comply; Health Grades sought to prevent disclosure.
- The arbitration confidentiality provision included language allowing disclosure of arbitration materials in response to a subpoena.

## Issues

1. Whether the arbitration confidentiality agreement between Health Grades and Hewitt barred Hewitt from producing arbitration materials in response to a Rule 45 subpoena issued in unrelated federal litigation.
2. Whether federal arbitration policy or the Federal Arbitration Act requires enforcing arbitral confidentiality against non-parties to defeat third-party discovery.
3. Whether private contracting parties can limit a stranger’s discovery rights under the Federal Rules of Civil Procedure.

## Decision

- The Seventh Circuit affirmed the order enforcing the subpoena and requiring Hewitt to produce the requested arbitration materials.
- The court held the confidentiality agreement did not bar production because it expressly permitted disclosure in response to a subpoena.
- The court further held that even if the agreement purported to prohibit subpoena compliance, it could not extinguish third-party discovery rights under the Federal Rules.
- The court rejected the argument that the Federal Arbitration Act or a general policy favoring arbitration overrides ordinary federal discovery rules for non-parties.

## Legal Principles

- Contractual confidentiality, without more, is not a discovery privilege and does not immunize documents from a lawful Rule 45 subpoena.
- Parties to a private agreement cannot, by contract, cut off a non-party’s ability to obtain discovery authorized by the Federal Rules of Civil Procedure.
- The Federal Arbitration Act enforces arbitration agreements as contracts but does not allow arbitral confidentiality provisions to bind or restrict non-parties who did not consent.
- Confidentiality concerns may support protective-order measures regarding use or dissemination, but they do not, standing alone, justify withholding otherwise discoverable materials.

## Conclusion

The Seventh Circuit enforced third-party discovery of arbitration materials because the arbitration contract allowed subpoena-based disclosure and, in any event, a private confidentiality agreement cannot defeat a non-party’s discovery rights under the Federal Rules absent a recognized privilege or other legal bar.


Gotham Holdings, LP v. Health Grades, Inc., 580 F.3d 664 (7th Cir. 2009)