A federal district court dealt with a novel approach where parties to an arbitration wanted to gain access to documents from a previous proceeding. The original case before the court pitted one plaintiff against three defendants—and the parties had a protective order entered following two differing proposals. The plaintiff opposed language in a protective order that would allow the confidential documents to be used in a subsequent arbitration, while the defendants advocated for the documents’ use. The court entered hybrid language allowing “information derived from any Protected Material” to be used in other matters but not allowing the documents themselves to be used. That case was later dismissed.

The matter is now being arbitrated between two of the defendants to the earlier action. The tribunal ordered the parties to produce the relevant documents. The two remaining parties returned to court to modify the protective order to allow the documents to be disclosed. One party sought to have only documents of the third defendant disclosed while the other party sought to have only documents of the plaintiff disclosed. In a March 9, 2016 opinion, the court determined that it had retained jurisdiction to modify the protective order, even though the case was dismissed. Rio Tinto PLC v. Vale, S.A., No. 14-3042 (USDC S.D.N.Y. Mar. 9, 2016).

In an April 18, 2016 opinion, the court took a split approach, determining that the defendant’s documents could be used, while the plaintiff’s could not. In reaching this determination, the court reasoned that the third defendant “had no or minimal reliance interest” because they had advocated for language allowing the documents’ use, whereas the plaintiff had “insisted” that the documents not be used. Rio Tinto PLC v. Vale, S.A., No. 14-3042 (USDC S.D.N.Y. Apr. 18, 2016).