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Unless a party shows bias or prejudice, an arbitrator’s quasi-judicial immunity protects the arbitrator from being subpoenaed to give a deposition, a federal court in Pennsylvania held.
In Garzella v. Borough of Dunmore, No. 3:05-CV-01626, 2006 WL 2583649 (M.D. Pa. Sept. 7, 2006), Alan Symonette served as the Chairman of an arbitration panel. Garzella then brought suit against Dunmore, alleging breach of contract and other claims, and sought to depose Symonette.
Garzella argued that arbitral immunity does not grant testimonial privilege to arbitrators. However, the Court disagreed. In High Concrete Structures, Inc. v. United Electrical, Radio and Machine Workers of America, Local 166, 879 F.2d 1215, 1219 (3rd Cir. 1989), the Court had held that “testimonial privilege…subject to exception, has been recognized to protect arbitrators.”
The one exception is when a party seeks to depose an arbitrator for claims of arbitrator bias or prejudice. Hoeft v. MVL Group, Inc., 343 F.3d 57, 67 (2d Cir. 2003). Simonette also relied upon In re EquiMed, Inc., 2005 WL 2850373 (E.D.Pa. 2005) which holds that even when a party seeks a deposition under the exception to an arbitrator’s immunity, the party seeking the deposition must first show evidence of bias or prejudice. Since Garzella admittedly sought only background information and was not claiming prejudice or bias on Symonette’s part, the exception did not apply, and the Court did not need to address the showing required of Garzella to depose an arbitrator for claims of bias or prejudice.
Instead, since Garzella’s request fell outside the limited exception, arbitral immunity and testimonial privilege protected Symonette, and the subpoena for his deposition was quashed.
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