No Sealing in Multi-Billionaire Leon Black's Attempt to Enforce Arbitration Subpoena
"Federal judges and their court staff are not legal pawns to be deployed in secret by wealthy disputants trying to get private answers to their problems."
From Monday's decision by Magistrate Judge Reid Neureiter (D. Colo.) in Black v. Emerson:
This case involves a Petition to Compel Compliance with an Arbitral Subpoena …, filed March 31, 2025. In connection with that filing, Petitioner Leon Black also filed a motion to seal (restrict from public access) the entire proceeding—including the petition itself….
According to the Petition, this matter concerns Mr. Emerson's alleged failure to comply with a subpoena for the production of documentary evidence that was duly signed and issued by a JAMS arbitration panel (the "Panel") pursuant to the Federal Arbitration Act ("FAA"). The Panel is presiding over an arbitration currently pending in New York County, New York, entitled Leon Black v. Joshua Harris (the "Arbitration"). The arbitration clause of the relevant agreement provides that discovery issues are to be "guided generally by … the United States Federal Rules of Civil Procedure," and specifically authorizes the Panel to issue third-party subpoenas ….
As justification for the restriction, Mr. Black argues that the Arbitration is a dispute over a contract which is subject to a mandatory confidentiality provision. Discovery in the Arbitration is, as required by the contract, subject to a confidentiality order which restricts the use of confidential or proprietary documents or information produced by any party or nonparty, including Mr. Emerson. And, Mr. Black, as a party to the Arbitration, is subject to the jurisdiction of the Panel, which has further ordered Mr. Black to use reasonable efforts to file all confidential information under seal….
"Although courts have discretion, sealing litigation documents, to say nothing of entire cases, is disfavored in the United States." … The public has a fundamental interest in understanding the disputes presented to and decided by our courts, so as to assure that they are run fairly and that judges act honestly. Sealing an entire case prevents critical public monitoring of the judge and judicial process:
The presumption of access is based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice. Federal courts exercise powers under Article III that impact upon virtually all citizens, but judges, once nominated and confirmed, serve for life unless impeached through a process that is politically and practically inconvenient to invoke. Although courts have a number of internal checks, such as appellate review by multi-judge tribunals, professional and public monitoring is an essential feature of democratic control. Monitoring both provides judges with critical views of their work and deters arbitrary judicial behavior. Without monitoring, moreover, the public could have no confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings. Such monitoring is not possible without access to testimony and documents that are used in the performance of Article III functions….
An arbitration agreement is a matter of contract between two private parties. They are free to agree to decide their disputes in private.
But private arbitration always carries with it the possibility of a need for court intervention or participation. One party might need to be compelled to arbitrate. With an arbitration decision rendered, one side might challenge the arbitration award and refuse to pay, requiring the prevailing party to seek court relief to enforce the arbitration award.
Or, as in this instance, one party might be required to seek assistance from a court to obtain evidence from a third party who never signed any arbitration agreement at all. Indeed, the FAA makes clear that the power of the federal court may be invoked to procure evidence or witnesses before an arbitration panel. With every American arbitration proceeding having the potential to spill over into federal court, parties to even a private confidential arbitration should know they risk having the existence of their dispute become public knowledge because of the strong presumption of public access to federal court proceedings.
Any request for court intervention or assistance in an arbitration proceeding necessarily calls upon the public resources of a judicial officer to examine and decide the question presented. This is the basic functioning of the judicial process that the public has a right to see, understand, and criticize if they choose. Federal judges and their court staff are not legal pawns to be deployed in secret by wealthy disputants trying to get private answers to their problems. "Courts are public institutions which exist for the public to serve the public interest. Even a superficial recognition of our judicial history compels one to recognize that secret court proceedings are anathema to a free society."
In arguing in favor of restricting essentially every meaningful document in this case, Mr. Black claims that restriction is necessary to protect "prior orders of the arbitral panel and the privacy interests of nonparties to this proceeding." Mr. Black makes no persuasive effort to explain why restriction of only certain exhibits or portions of documents would not be sufficient to protect these interests. It is not enough to say that the Panel has ordered everything in the arbitration to be confidential, so any disclosure of any document from the arbitration conflicts with that order. In sum, Mr. Black's skeletal explanation fails to convince that these asserted interests "heavily outweigh" the public interests in access. His motion will be denied….
The Magistrate Judge did, however, restrict some documents, as requested by Emerson's much narrower sealing request; a brief excerpt:
Under [Mr. Emerson's] proposal, Mr. Black's Petition, Mr. Emerson's Response, Black's Reply, and Emerson's Surreply, all would be open to the public for inspection. The public would therefore understand the reason for Court's power is being invoked and the key issue to be decided: whether Mr. Emerson's is obliged to comply with an arbitral subpoena, or instead whether he has already complied.
Mr. Emerson asserts that, as a non-party, he has a significant privacy interest and asks the Court to restrict the listed exhibits on that basis….