When parties agree to arbitrate their disputes, they consent to have an arbitrator, rather than a court, resolve disputes about whether particular documents are discoverable, including whether the documents are privileged. A novel legal issue exists, however, with respect to whether, in connection with a petition to enforce an arbitral subpoena under the Federal Arbitration Act (the FAA), a district court is authorized to consider de novo privilege objections to the production of the requested documents.

In Turner v. CBS Broadcasting, 2022 WL 1209680 (S.D.N.Y. April 25, 2022), U.S. District Court Judge Jed S. Rakoff for the Southern District of New York recently addressed this issue of first impression, concluding that a court is authorized, but not required, to consider de novo privilege objections to an arbitral subpoena. In Turner, Judge Rakoff declined to exercise that authority because, among other things, he concluded that "even a cursory review reveals that the arbitrator's … decision to overrule CBS's assertion of privilege over the … documents [at issue] was anything but arbitrary."

'Turner'

In Turner, the petitioner, the International Brotherhood of Electrical Workers Local 1200, AFL-CIO (IBEW or Union), sought to enforce an arbitral subpoena seeking an internal investigation report and associated records from the respondent, CBS Broadcasting. The underlying arbitration was brought by the Union after a long-term, freelance cameraman was removed from a "referral list" of cameramen eligible to be hired by CBS to film sporting events. CBS removed the cameraman from the referral list after another CBS employee complained that the cameraman had touched her without her consent.