It’s the third day of a four-day hearing and everyone’s getting tired.  The parties have worked hard for nine months in preparation for their case and witnesses were brought in from out-of-town.  As you enter the room after lunch you overhear an attorney whispering to his client, “Don’t worry, I have the hearing recorded.”  The matter of recording the hearing was not discussed beforehand as neither party requested a takedown.

What do you do?

If you’re on a panel you should inform the parties you need to caucus with the other arbitrators.  Once you as a panel or sole arbitrator can address the matter, I suggest handling the issue as follows:

First, in the hearing ask everyone to turn off all recording devices.  Once you’ve made this announcement, let the parties know you overheard a conversation upon entering the room after lunch that the hearing was being recorded. Remind the parties that arbitration is confidential and that any and all recordings must be agreed upon by all of the parties and the arbitrator prior to the start of the hearing.  Since no requests to takedown the hearing were made, the hearing is not to be recorded and any recording made prior up to this is not authorized or an official record and the recording media should be permanently erased or destroyed immediately.  Ask if there are any questions and if none, proceed with the hearing as usual.

It is always important to address the takedown of a hearing before it starts and whether or not the recording will be the official record, who will be entitled to have a copy and when and who pays the cost.

In such a scenario such as the one above, it’s important to remain impartial and not “call out” improper behavior.  It’s also advisable when the matter is not addressed prior to the hearing to state in the award “This hearing was not recorded and thus there is no official record exists other than (for example) the pleadings, motions and evidence admitted at the final hearing.”  By including this language, you can cover the bases in the event an unathorized recording was made with or without the arbitrator’s knowledge.