In a breach of contract and professional malpractice, plaintiff entered into a private mediation with a non-party, which affected its claim against Defendant.  May defendant obtain the arbitration documents in order to defend himself?  Answer:  yes.

City of Newburgh, N.Y. v Hauser  2015 NY Slip Op 02442 [126 AD3d 926]  March 25, 2015  Appellate Division, Second Department tells us that while arbitration materials may not be used as “evidence” they remain discoverable.

“The defendants sought to compel the plaintiff to produce certain documents submitted in a private mediation proceeding between the plaintiff and a nonparty. The subject documents are material and relevant to the defense of this action (see CPLR 3101; Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745-746 [2000]; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; Yoshida v Hsueh-Chih Chin, 111 AD3d 704, 705-706 [2013]; Osowski v AMEC Constr. Mgt., Inc., 69 AD3d 99 [2009]; American Re-Ins. Co. v United States Fid. & Guar. Co., 19 AD3d 103 [2005]; Masterwear Corp. v Bernard, 3 AD3d 305 [2004]; Masterwear Corp. v Bernard, 298 AD2d 249 [2002]).

Contrary to the plaintiff’s contention, CPLR 4547 does not bar disclosure of the subject documents, as that statute is concerned with the admissibility of evidence, and does not limit the discoverability of evidence (see Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 77 AD3d 224, 233 [2010], mod on other grounds 18 NY3d 652 [2012]).”