Opinion
Cause No. 1:01-CV-336
November 5, 2002
ORDER
This matter is before the Court on the pro se Plaintiff's Motion to Compel (Docket No. 51) Charles P. Fischbach (hereafter "Fischbach"), to submit to a deposition and Fischbach's corresponding Motion for a Protective Order (Docket No. 56). Oral argument was heard on the two motions on September 5, 2002. For the reasons provided, the Motion to Compel will be DENIED and the Motion for a Protective Order will be GRANTED.
Fischbach was formerly a party to this action, but has since been dismissed and now is a non-party.
DISCUSSION
To vastly oversimplify, this case centers on Fischbach's arbitration decision regarding the Plaintiff's former employment at General Electric. The Plaintiff contends that the arbitration determination in favor of General Electric should be set aside because Fischbach exhibited bias against the Plaintiff both during the arbitration proceedings and afterward. At present, the Plaintiff would like to depose Fischbach, supposedly to explore this alleged bias, and apparently to inquire about how he came to his decision. (See M. to Compel ¶ 7.)
Fischbach objects to any deposition and invokes the legal proposition that unlike most discovery requests, a request to depose an arbitrator should be denied (and a protective order entered) until "clear evidence of [arbitral] impropriety or bias" has been shown. See, e.g., Andros Compania Maritima, S.A. v. Marc Rich and Co., A.G., 579 F.2d 691, 702 (2nd Cir. 1978); Lyeth v. Chrysler Corp., 929 F.2d 891, 899 (2nd Cir. 1991); Frere v. Orthofix, Inc., 2000 WL 1789641 at *5 (S.D.N.Y. Dec. 6, 2000); Corsini v. Prudential Sec., Inc., 1995 WL 663174 at *2 (S.D.Cal. Sept. 29, 1995); Sidarma Societa Italiana di Amamento Spa Venus v. Holt Marine Indus., Inc., 515 F. Supp. 1302, 1309 (S.D.N.Y.) aff'd mem., 681 F.2d 802 (2nd Cir. 1981). Indeed, this general rule, correctly identified by Fischbach, "serves to protect against harassment or undue burdening of the arbitrator and against undesirable delay in the completion of the arbitral process." Nat'l Hockey League Players Assoc. v. Bettman, 1994 WL 38130 at *2 (S.D.N.Y. Feb. 4, 1994); see also, Frere at * 4.
Against such a standard the Plaintiff offers little, and certainly no clear evidence of any impropriety or bias. While the Plaintiff does complain about the lateness of Fischbach's decision, and his alleged failure to follow the rules of the American Arbitration Association, this is not clear evidence, and most likely no evidence at all, of bias. Moreover, the need to depose Fischbach on these points is unclear given that they presumably already exist in the arbitration record. Indeed, that very point is underscored by the Plaintiff's argument offered at the September 5, 2002 hearing where he sought to show clear evidence of bias by quoting at length from Fischbach's arbitration decision.
The Plaintiff also contends that Fischbach allegedly made various statements demonstrating either a bias against the Plaintiff, or a prejudging of his case. However, having considered Fischbach's alleged comments or actual comments as reflected in the arbitration record, I conclude they do not establish "clear evidence" of bias or impropriety. (Id.) Moreover, a deposition of Fischbach seems unnecessary because his comments are either reflected in the record, or were made in the presence of other persons who can be deposed about them. See Bettman, 1994 WL 38130 at *5 (deposition of arbitrator denied because the areas of relevant inquiry could be conducted through the depositions of others).
The Plaintiff specifically points to a comment allegedly made by Fischbach to the Plaintiff's then attorney, Joseph Golden.
At the September 5, 2002 hearing the Plaintiff sought to impress the Court with, in his view, the inherent unfairness of having to establish actual bias before he can do the discovery necessary to show such bias. Although his complaint certainly identifies a difficult burden, it does not describe an impossible one. However, in any event, depositions of arbitrators have been "repeatedly condemned" by the courts and the facts of this case do not suggest that any departure from that well-established rule is warranted. Woods v Saturn Dist. Corp., 78 F.3d 424, 430 (9th Cir. 1996) (citing, O.R. Securities, Inc., v. Professional Planning Assocs., Inc., 857 F.2d 742, 748(11th Cir. 1988); cf. Nationwide Mut. Ins. Co. v Home Ins. Co., 278 F.3d 621, 626 (6th Cir. 2002)
Finally, the Plaintiff complains about Fischbach's findings, but this also fails to establish clear evidence of bias. Moreover, this argument for arbitrator discovery has been expressly and correctly rejected because it would undermine the value of arbitration as an efficient means of dispute resolution. See Sidarma, 515 F. Supp. at 1309 (citing Nat'l Ball Carriers, Inc. v. Princess Mgmt Co., 597 F.2d 819, 825 (2nd Cir. 1979)); see also, Bettman, 1994 WL 38130 at *5 (arbitral decision-making is protected from discovery). Moreover, to the extent the Plaintiff contends that Fischbach's bias is demonstrated by his legal rulings, that too is insufficient to allow a deposition. See Corsini, 1995 WL 663174 at *4 (even an incorrect legal ruling does not support taking the arbitrators deposition). Indeed, inconsistencies in an arbitrator's reasoning are merely errors of law or fact and do not form the basis for setting aside an award, let alone a basis for doing arbitrator discovery. BEM I, L.L.C. v. Anthropologie, Inc., 301 F.3d 548, 556 (7th Cir. 2002).
Accordingly, the Motion to Compel Fischbach to submit to a deposition is DENIED. Fischbach's Motion for a Protective Order is GRANTED, and Fischbach will not be required to submit to a deposition until further order of the Court and only then after "clear evidence of impropriety or bias" has been shown. See, e.g., Andros.
Although the Court does not ground its decision on the point, because Fischbach has never apparently been served with a deposition subpoena, this alone would be enough to deny the Motion to Compel. See Fed.R.Civ.P. 45.