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Witness Notes in Arbitration

Wednesday, December 10, 2025 5:46 PM | Anonymous

Adam Kutner - Review from Actual Client Janae Reynolds

If a witness takes notes during the hearing, can the opposing party request access to those notes?

What are your thoughts?

Comments

  • Thursday, December 11, 2025 9:55 AM | Kim Landsman
    Without getting into the technical aspects of this, I just wouldn't allow it. I don't think it has much evidentiary value and it is too intrusive.
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  • Thursday, December 11, 2025 10:00 AM | Jim Daniels international Arbitrator in Mining oil & gas and shipbuilding
    Yes - very definitely yes if the Counsel share their notes with the other Counsel.
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  • Thursday, December 11, 2025 10:01 AM | David Allgeyer
    I’d say no. Some people naturally take notes as part of their reasoning process and it may help them to be more accurate and thoughtful in their testimony. I agree with Kim that I don’t see the evidentiary value of the notes themselves. I don’t think it would help me decide the case.

    I’m addressing notes taken at the hearing. Bringing notes to hearing already made might be something else.
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  • Thursday, December 11, 2025 10:06 AM | Eric D. Kuritzky, Architect, CBO, Arbitrator
    If the witness is taking notes for themselves, which many people do, I would say 'no'.. If the witness were to share those notes with counsel, or anyone else, I would probably say that those notes are now part of the process and need to be shared with all parties to the arbitration. It might be appropriate to ask the witness, and then remind them that if their notes are shared, that they need to be shared with everyone.
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  • Thursday, December 11, 2025 10:06 AM | LAWRENCE D BERGER
    I haven't had this question during an arbitration. The more familiar question is whether counsel can see notes that a witness uses during testimony, presumably prepared before and referred to as the witness testifies. The answer at trial (or in a deposition) is yes, and I assume that it would be in arbitration as well. As for this specific question, notes prepared as the witness testifies, I think it depends. Probably, I would tell my witness not to do it, unless specifically asked as part of the examination.
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  • Thursday, December 11, 2025 10:07 AM | SSM
    Absolutely. Request should be granted, since it is being created (1) by the witness (2) contemporaneously with his sworn testimony--thus going to the witness's credibility. Ditto any materials the witness reviews during the course of testimony.
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  • Thursday, December 11, 2025 10:08 AM | Henry Parr
    seems to me that witness notes are fair game if they relate to their testimony
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  • Thursday, December 11, 2025 10:12 AM | Gregory P. Parsons
    If the experts files are discoverable, and have been shared, then the notes taken in the hearing are simply an update of the export's file.
    Link  •  Reply
  • Thursday, December 11, 2025 10:21 AM | Kent Sinclair
    A party may certainly request access to notes a witness takes during the hearing, but for the request to be granted would need to show that the notes are relevant, material, and not unduly burdensome, a standard that typically would extend to a witness’s personal note-taking.

    Exceptions could exist, such as an expert who performs a calculation during the hearing, states the result on the record, and appears to have relied on contemporaneous written work. In that situation, disclosure of the specific calculation page may be appropriate to ensure an accurate evidentiary record and to provide the opposing party with a fair opportunity to understand and questions the methodology and accuracy of the calculation.

    Other than such limited and unusual circumstances, access to the notes seems inappropriate.
    Link  •  Reply
    • Thursday, December 11, 2025 12:33 PM | James Gansinger
      Absolutely.
      Link  •  Reply
    • Thursday, December 11, 2025 12:41 PM | Jaime Ramon
      Several considerations here. First, I don't see why this would be necessary. Second, I always apply the witness rule in my hearings. So I would instruct the witness that the witness can not share those notes with the other witnesses; and I would also instruct the witness that the witness must share those notes with opposing counsel.
      Link  •  Reply
    • Thursday, December 11, 2025 12:49 PM | JAM
      Agree with one caveat. If the witness is an attorney for one of the parties, his/her notes would be attorney work product. I would not require them to be disclosed.
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      • Thursday, December 11, 2025 12:51 PM | JAM
        My "agreement" is with Sinclair's response.
        Link  •  Reply
  • Thursday, December 11, 2025 1:39 PM | Leslie W. Langbein
    This is a fair topic of cross examination. Of course if the witness already was on the stand, has not been excused from the hearing room and thereafter is seen taking notes, he or she should be instructed not to discuss testimony or share notes with other witnesses. But what prevents the witness from sharing his or her personal notes with the counsel who called him or her as a witness and why would those notes have to be disclosed to the opposing side ?
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  • Thursday, December 11, 2025 9:15 PM | Gerald Harris
    Notes made prior to the hearing would be discoverable as prior statements of the witness. Notes made at the hearing should not have to be produced unless the witness testifies to relying on the notes in giving testimony. A note made and handed to counsel should never have to be produced since it is a client/attorney communication. If a party whispers in counsel's ear can he be asked what he said?
    Link  •  Reply
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