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U.S. Code as of:
01/03/05
Section 574. Confidentiality
(a) Except as provided in subsections (d) and (e), a neutral in a
dispute resolution proceeding shall not voluntarily disclose or
through discovery or compulsory process be required to disclose any
dispute resolution communication or any communication provided in
confidence to the neutral, unless -
(1) all parties to the dispute resolution proceeding and the
neutral consent in writing, and, if the dispute resolution
communication was provided by a nonparty participant, that
participant also consents in writing;
(2) the dispute resolution communication has already been made
public;
(3) the dispute resolution communication is required by statute
to be made public, but a neutral should make such communication
public only if no other person is reasonably available to
disclose the communication; or
(4) a court determines that such testimony or disclosure is
necessary to -
(A) prevent a manifest injustice;
(B) help establish a violation of law; or
(C) prevent harm to the public health or safety,
of sufficient magnitude in the particular case to outweigh the
integrity of dispute resolution proceedings in general by
reducing the confidence of parties in future cases that their
communications will remain confidential.
(b) A party to a dispute resolution proceeding shall not
voluntarily disclose or through discovery or compulsory process be
required to disclose any dispute resolution communication, unless -
(1) the communication was prepared by the party seeking
disclosure;
(2) all parties to the dispute resolution proceeding consent in
writing;
(3) the dispute resolution communication has already been made
public;
(4) the dispute resolution communication is required by statute
to be made public;
(5) a court determines that such testimony or disclosure is
necessary to -
(A) prevent a manifest injustice;
(B) help establish a violation of law; or
(C) prevent harm to the public health and safety,
of sufficient magnitude in the particular case to outweigh the
integrity of dispute resolution proceedings in general by
reducing the confidence of parties in future cases that their
communications will remain confidential;
(6) the dispute resolution communication is relevant to
determining the existence or meaning of an agreement or award
that resulted from the dispute resolution proceeding or to the
enforcement of such an agreement or award; or
(7) except for dispute resolution communications generated by
the neutral, the dispute resolution communication was provided to
or was available to all parties to the dispute resolution
proceeding.
(c) Any dispute resolution communication that is disclosed in
violation of subsection (a) or (b), shall not be admissible in any
proceeding relating to the issues in controversy with respect to
which the communication was made.
(d)(1) The parties may agree to alternative confidential
procedures for disclosures by a neutral. Upon such agreement the
parties shall inform the neutral before the commencement of the
dispute resolution proceeding of any modifications to the
provisions of subsection (a) that will govern the confidentiality
of the dispute resolution proceeding. If the parties do not so
inform the neutral, subsection (a) shall apply.
(2) To qualify for the exemption established under subsection
(j), an alternative confidential procedure under this subsection
may not provide for less disclosure than the confidential
procedures otherwise provided under this section.
(e) If a demand for disclosure, by way of discovery request or
other legal process, is made upon a neutral regarding a dispute
resolution communication, the neutral shall make reasonable efforts
to notify the parties and any affected nonparty participants of the
demand. Any party or affected nonparty participant who receives
such notice and within 15 calendar days does not offer to defend a
refusal of the neutral to disclose the requested information shall
have waived any objection to such disclosure.
(f) Nothing in this section shall prevent the discovery or
admissibility of any evidence that is otherwise discoverable,
merely because the evidence was presented in the course of a
dispute resolution proceeding.
(g) Subsections (a) and (b) shall have no effect on the
information and data that are necessary to document an agreement
reached or order issued pursuant to a dispute resolution
proceeding.
(h) Subsections (a) and (b) shall not prevent the gathering of
information for research or educational purposes, in cooperation
with other agencies, governmental entities, or dispute resolution
programs, so long as the parties and the specific issues in
controversy are not identifiable.
(i) Subsections (a) and (b) shall not prevent use of a dispute
resolution communication to resolve a dispute between the neutral
in a dispute resolution proceeding and a party to or participant in
such proceeding, so long as such dispute resolution communication
is disclosed only to the extent necessary to resolve such dispute.
(j) A dispute resolution communication which is between a neutral
and a party and which may not be disclosed under this section shall
also be exempt from disclosure under section 552(b)(3).
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