WRITERS GUILD OF AMERICA WEST INC v. VIDAL (1988)

By way of petition for writ of mandate, the Writers Guild of America, West, Inc. (WGA or Guild) challenges an order compelling it to answer an interrogatory propounded by Real Party in Interest, Gore Vidal, seeking the names of three arbitrators who determined that another writer, Steve Shagan, and not Vidal, was entitled to a screenplay credit for the film “The Sicilian.”   WGA is a defendant in a proceeding filed by Vidal to vacate such arbitration award and for declaratory relief.   We issued alternative writ and order to show cause why the order of November 6, 1987, granting Vidal's motion to compel an answer to his interrogatory no. 1 should not be vacated and a new and different order denying said motion be entered.   Hearing has been had thereon.   We conclude that the writ should be denied.

FACTUAL AND PROCEDURAL BACKGROUND

This proceeding arises out of WGA's determination of the screenplay credit for the motion picture, “The Sicilian,” based upon a novel written by Mario Puzo.   Vidal and two other writers including Steve Shagan and the film's director, Michael Cimino, participated at various stages in writing the screenplay for the film which was being produced by Gladden Entertainment Corp. (Gladden).  In October 1986 Gladden informed WGA that principal photography on the film had been completed and requested that a credit determination be conducted by WGA.   Pursuant to a collective bargaining agreement between WGA and the employers of writers in the motion picture and television industry, WGA determines, where there is a dispute, which writer(s) will receive screen credit for the writing of the motion picture.   Both economic benefits and status in the industry stem from the writer's receipt of screen credit.   A portion of the collective bargaining agreement titled “Theatrical Schedule A, Theatrical Credits,” sets out the general rules of credit determination and advertising of credits as well as obligations of the employers and WGA with respect thereto.   The procedures for arbitration of credit disputes are set out in WGA's “Credits Manual,” not part of the collective bargaining agreement, but approved by WGA's board of directors and by vote of the membership.   WGA conceded to the court below that nowhere in the agreement or Credits Manual was it expressly written that the identity of the arbitrators was not to be disclosed to the parties but that such a practice has been followed since the 1940's.   Vidal, who has been a WGA member since 1955, admits that he participated in a credit arbitration in the past but claims that he did not know that the decisions were made by anonymous arbitrators.

According to the Credits Manual, the arbitrators hear no oral testimony, but receive written scripts and written statements of each participant as to his position.   A statement of the issues to be determined is formulated by the Guild's credit arbitration secretary.   Each arbitrator renders his or her own decision, apparently without consulting with the other arbitrators, although a “credit consultant” is available to the arbitrators for information on policy, rules, and procedure during the arbitration period, and whose duty it is to “aid the [arbitrators] toward a majority decision.”   The arbitrator then communicates his decision to the credit arbitration secretary, who, if unanimity is not reached, accepts the majority decision as final and communicates it to the interested parties.

The arbitration panel rendered its decision in the instant case on December 31, 1986 and each of the three arbitrators decided that Shagan was entitled to a sole screenplay credit.   The Policy Review Board confirmed the decision on January 22, 1987.   The Policy Review Board, whose function is to “determine whether or not, in the course of the credit determination, there has been any serious deviation from the policy of the Guild [WGA] or the procedure as set forth in this Manual,” has the authority to consider only such issues as dereliction of duty of the arbitrators, undue influence on the arbitrators, the arbitrators' misinterpretation or violation of Guild policy, and the existence of important new written material previously not available to the arbitrators.   The Policy Review Board may direct the original arbitrators to reconsider the case or direct the arbitration secretary to form a new panel.

In February 1987 in respondent superior court, Vidal filed against WGA and Steve Shagan a “complaint to vacate arbitration award and for declaratory relief” in which he alleges that he is still in the process of rewriting the picture and is its true primary author even though Shagan was the first writer on the project;  that the arbitrators failed to follow WGA rules by failing to consider the qualitative significance of the respective contributions of the contestants to authorship, and made only a quantitative analysis of their efforts;  that WGA and the arbitrators failed to consider the fact that rewriting and editing were still in progress, so that the contributions of the writers would necessarily change, resulting in an increase in Vidal's contribution and a decrease in Shagan's;  that WGA failed to consider the material that was then included in the picture at the time of the arbitration;  that WGA's rush to rule upon authorship in a premature manner was the result of pressure from Shagan, an important and highly active Guild member.

Vidal further alleges that the arbitration award was procured by fraud and mistake:  an important document, an outline for the film, unknown to Vidal but known to the WGA and Shagan, was withheld from the arbitrators and such document would have demonstrated that Shagan's contribution to authorship of the screenplay was less than represented to the arbitrators;  Shagan's name was placed on the cover page of the final screenplay written by Vidal in such a manner as to indicate that Cimino, as director, had signed an acknowledgement that Shagan and not Vidal had written the screenplay;  Vidal's name was deleted from earlier drafts he had written and those drafts were not given to the arbitrators;  and that the arbitrators were partial and biased in favor of Shagan, a fellow local writer and prominent member of the Board of Directors of WGA, and were prejudiced against Vidal, not a member of the local screenwriting community but primarily a novelist living abroad.   Vidal finally alleges the award was obtained through improper contacts and communications with the arbitrators.   The relief sought by the complaint is for a judgment vacating the arbitration award and ordering a new arbitration, as well as for a declaration that WGA arbitration procedure is illegal and invalid and that the determination that Shagan is the sole author of the screenplay is a nullity.

WGA and Shagan generally denied the allegations and raised as an affirmative defense, inter alia, that the complaint is barred because Vidal failed to exhaust his intra-union remedies.   Thereafter, Vidal propounded to WGA a set of interrogatories in which by interrogatory no. 1 he sought to discover the names of the arbitrators who participated in determining the writing credit on “The Sicilian.”   Vidal asserted that the arbitrators are crucial witnesses to whether there were any improper contacts, bias, misconduct, or fraud relating to the documents submitted to them.   After objection to the interrogatory by WGA, Vidal filed motion to compel answer to interrogatory no. 1.   After hearing, the court on September 9, 1987, denied the motion stating in its order, “The policy of the law favors arbitration and an order compelling disclosure of the identity of the arbitrators would effectively destroy an arbitration process that has served an industry for close to 50 years.   Plaintiff has voluntarily accepted the benefits of this process when it has worked to his advantage and he is not in a position now to complain.  [¶] For the record, I do not accept defendants' contention that this ruling is governed by Federal law.   California law is dispositive on questions of discovery in a case pending in a California court․  The analogy to the academic freedom cases (e.g. Kahn v. Superior Court (1987) 188 Cal.App.3d 752, 233 Cal.Rptr. 662) is more persuasive simply because it justifies an order upholding a secret process where public policy reasons support such a ruling․  I am persuaded that the existing system, where writers (members of the Guild) resolve disputes among writers without fear of retribution or criticism by their colleagues, has worked all these years because everyone involved starts with a premise of trust and an express willingness to be bound by these rules.   To permit one dissatisfied writer to attack a system he has agreed to be bound by would simply not be justified on the showing made by plaintiff in this case.”

Vidal moved for reconsideration of the denial of his motion, and on November 6, 1987, it was granted.   Upon reconsideration, the court also granted the motion to compel, stating in its ruling as follows:  “I was under the impression that the arbitration rules were written.   I find it significant that the Guild's opposition to the motion for reconsideration addresses all of the other points raised, but not this one.   Mr. Vidal is correct in his assertion that I believed the rules were written․  It is one thing to say that a writer accepts the rules even if he does not bother to read them, but it is quite another thing to base a profound system such as this on an unwritten custom—I have a much greater problem finding waiver on these facts, and decline the invitation to do so.  [¶] ․ As far as the other arguments go, I disagree․  [¶] Motion to compel granted․”

The Guild and Shagan moved for reconsideration of the November 6, 1987 order compelling an answer to interrogatory no. 1.   After hearing, the following minute order of December 7, 1987, was entered:  “This is in reality a motion for reconsideration of the last motion for reconsideration and I simply decline the invitation to review this for the third time.  [¶] I have been candid in telling you that I believe this issue ought to be decided by the Court of Appeal․  [¶] For whatever it's worth, it doesn't matter to me whether Mr. Vidal knew the Guild's procedures.   What matters, as I thought I made clear, is the fact these procedures are not formalized and it would vary from member to member as to whether they happened to get into a dispute early in the term of their Guild membership, when they didn't have time to absorb custom and usage, or whether it was someone of long-standing membership.   This ought not to be dispositive of an issue of this magnitude.”

The Guild filed timely petition for a writ of mandate directing respondent superior court to set aside the trial court's order of November 6, 1987, compelling an answer to Vidal's interrogatory no. 1, and order of December 7, 1987 denying its motion for reconsideration, and to enter a new order denying Vidal's motion to compel an answer to interrogatory no. 1.

I

STANDARD OF REVIEW

“In reviewing an order of a superior court granting discovery, we recognize at the threshold that ‘the discovery statutes vest a wide discretion in the trial court in granting or denying discovery’ and ‘such exercise [of discretion] may only be disturbed when it can be said that there has been an abuse of discretion.’  [Citation.]  ․ Appellate courts must keep the liberal policies of the discovery statutes equally in mind when reviewing a decision granting discovery.   In this context, absent a showing by the petitioner that a substantial interest will be impaired by the discovery, the liberal policies of the discovery rules will generally counsel against overturning the trial court's decision granting discovery.”  (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 171, 84 Cal.Rptr. 718, 465 P.2d 854.)

II

FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND WAIVER

Petitioner contends that because Vidal did not raise his claims of fraud or undue influence before the Policy Review Board and because he did not seek the names of the arbitrators at that time, he has failed to exhaust his administrative remedies as to such claims, and discovery of the names of the arbitrators thus becomes irrelevant.   The Guild makes two other arguments based on the underlying merits of Vidal's claims:  (1) By virtue of the long-standing practice between WGA and the producers, WGA's system of credit arbitration has become part of the collective bargaining agreement, so the order compelling disclosure violates the policy of federal labor law prohibiting the court from setting aside a provision of a collective bargaining agreement.  (2) The court improperly determined that Vidal had a “right” to a credit determination by nonanonymous arbitrators and that the Guild had the burden of showing a “waiver” of that right.

As to the latter arguments, it is clear that (1) the court was not called on to decide Vidal's rights under the collective bargaining agreement, or any other agreement, and (2) the discovery order does not indicate that the court in fact determined Vidal's rights as to any particular arbitration procedure.   We interpret the court's discussion on the issue of waiver in its ruling on Vidal's motion to reconsider to be simply an explanation of the basis for its prior ruling, which the court found was based on a misconception of the facts.   It is clear that after reconsideration, the court compelled discovery due to a conclusion it had reached on policy grounds and not because it had adjudicated the merits of any of the issues involved in the case.   Nor did the court purport to set aside any provision of a collective bargaining agreement.   We find the issue of the arbitration procedure to which Vidal is or may be entitled to be a completely separate and distinct issue from that involved in the discovery motion.   This distinction was recognized explicitly by the court in the first hearing after which it stated in its minute order that the issue was to be determined pursuant to California discovery law.   This is not to imply that the impact on the industry of an order compelling discovery of the arbitrators' identities is not a proper factor to consider in determining the discovery issue, as this factor is indeed significant, as will be apparent from the discussion below.   However, what is not at issue here is whether the court or Vidal is in violation or breach of the collective bargaining agreement by pursuing such discovery;  in fact the Guild does not point to any contractual provisions or long-standing policies relating to discovery rights in litigation.   Despite WGA's attempts to cast the issue in its petition in the broadest possible terms, we decline to address issues which were not properly before the trial court and which are not pertinent to the discovery issue before us.

 Nor did the trial court purport to adjudicate the Guild's affirmative defense pertaining to the exhaustion of administrative remedies.   This argument, in essence, contains a hidden motion for summary judgment.   Not only would it have been fairer for the Guild to have raised this issue by appropriate motion in the trial court, but at this time we cannot properly rule on either the validity of the asserted affirmative defense or on the evidence which may be relevant to it.  (Pacific Tel. & Tel. Co. v. Superior Court, supra, 2 Cal.3d 161, 175, 84 Cal.Rptr. 718, 465 P.2d 854.)   Whether or not the defense is a valid one, the parties are entitled to undertake discovery with reference to the matters potentially involved.  (Ibid.)

As to the issue of exhaustion of administrative remedies, Vidal claims that there is no written record of the Policy Review Board proceeding, and the facts of fraud, bias and prejudice were not yet known to him at the time of his appeal to the Board.   We note also that the Credits Manual requires a contestant in a credit arbitration to request review by the Policy Review Board within 24 hours of notification of the arbitrators' decision.   Thus, given the short time to investigate the circumstances of the arbitration and the fact that the arbitrators are not known to the contestants, it is at least an arguable issue as to whether or not the appeal procedure provided rights which were merely illusory or in fact afforded an adequate opportunity for Vidal to raise any of the limited matters that the Board is empowered to consider.

On our present record, it is also not established whether, even in the absence of a request by Vidal, the Board did in fact consider the issues of fraud or undue influence under its authority to consider matters of dereliction of duty, undue influence, or misapplication or violation of Guild policy.   In light of the procedural posture of the instant case, we conclude the trial court did not abuse its discretion in impliedly determining that the instant discovery was relevant to the subject matter involved in the pending action.  (See Code Civ.Proc., §§ 2030, subd. (c) and 2016, subd. (b).)

A determination of relevancy, however, is not the end of the inquiry because petitioner raises the issue of the arbitrators' constitutional right of privacy under Article I, section 1, of the California Constitution.   Although in its petition, the Guild did not argue it had a right of privacy, the Guild, as the litigant-holder of information, asserted such right on behalf of the nonparty arbitrators.   In its reply brief, the Guild appears to assert it also had a right of privacy, but it is unclear what the nature of its right may be inasmuch as the Guild does not elaborate.   We therefore deem the issue of the Guild 's right of privacy not to have been properly tendered, and it is not before us.

III

ARBITRATORS' RIGHT OF PRIVACY

 The ordinary yardstick for discoverability, i.e., that the information sought may lead to relevant evidence, is not applicable when compelled disclosure would intrude on constitutionally protected areas.   (Kahn v. Superior Court (1987) 188 Cal.App.3d 752, 770, 233 Cal.Rptr. 662.)  Article I, section 1, of the California Constitution states:  “All people are by nature free and independent and have inalienable rights.   Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”   Although fundamental, the constitutional right of privacy is not absolute but may be abridged to accommodate a compelling public interest.   (El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 345, 235 Cal.Rptr. 303.)   One such interest, evidenced by California's broad discovery statutes' is the historically important state interest of facilitating the ascertainment of truth in connection with legal proceedings.   (Moskowitz v. Superior Court (1982) 137 Cal.App.3d 313, 316, 187 Cal.Rptr. 4.)  “Thus, the interest in ascertaining the truth in judicial proceedings has been held to be sufficiently substantial to justify disclosure of much confidential material, including communications to a psychotherapist.   [Citation.]  In the context of discovery of confidential information in personnel files, even when such information is directly relevant to litigation, discovery will not be permitted until a balancing of the compelling need for discovery against the fundamental right of privacy determines that disclosure is appropriate.  (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525 [174 Cal.Rptr. 160].)  And, even when the balance tips in favor of disclosure, constitutional concerns require a strict circumscription of the scope of the disclosure.  (Id., at p. 526 [174 Cal.Rptr. 160].)”  (Cutter v. Brownbridge (1986) 183 Cal.App.3d 836, 843, 228 Cal.Rptr. 545.)

 Some of the considerations which will affect the exercise of the trial court's discretion include the purpose of the information sought, the effect that disclosure will have on the parties and on the trial, the nature of the objections urged by the party resisting disclosure, and the ability of the court to make an alternative order which may grant partial disclosure, disclosure in another form, or disclosure only in the event the party seeking the information undertakes certain specified burdens which appear just under the circumstances.  (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 658, 125 Cal.Rptr. 553, 542 P.2d 977.)   Where the trial court abuses its discretion in applying the balancing test and fashioning its order, relief is available by writ of mandate.  (Hofmann Corp. v. Superior Court (1985) 172 Cal.App.3d 357, 362, 218 Cal.Rptr. 355.)

 In turning to the circumstances of the case before us, we note that both parties have “competing claims of high dignity.”  (Kahn v. Superior Court, supra, 188 Cal.App.3d 752, 767, 233 Cal.Rptr. 662.)   On the one hand, the arbitrators have a limited and nonabsolute right to privacy under Article I, section 1, of the California Constitution.   The general concept of privacy relates to an enormously broad and diverse field of personal action and belief.  (White v. Davis (1975) 13 Cal.3d 757, 773–774, 120 Cal.Rptr. 94, 533 P.2d 222.)   It protects our homes, families, thoughts, emotions, expressions, personalities, and freedom of association.  (Id., at pp. 774–775, 120 Cal.Rptr. 94, 533 P.2d 222.)   The Guild contends that disclosure of the arbitrators' names could destroy their ability to obtain future employment in the entertainment industry, and could subject them to retribution by the producers of “The Sicilian,” by Vidal, or by Vidal's attorney, a “prominent entertainment lawyer and deal-maker within the industry.”

Unlike the academic tenure cases, wherein the public interest in promoting academic excellence is at stake, the Guild does not identify any public interest at stake in the disclosure of the arbitrators' identity.   Despite this difference, the arbitrators still have a privacy interest concerning their role in the arbitration because it is the type of information that is at least as sensitive as financial dealings and assets which are accorded a limited protection under the right of privacy.  (See Hofmann Corp. v. Superior Court, supra, 172 Cal.App.3d at p. 362, 218 Cal.Rptr. 355.)   The arbitrators would have this right whether or not they were guaranteed confidentiality in writing (see Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 533, 174 Cal.Rptr. 160), and whether or not Vidal agreed to be bound by any promise or expectation of privacy.   While we recognize that the arbitrators have some legitimate but limited right of privacy, its scope depends on the role arbitrators play in the entire procedure set up by the Guild to handle credit disputes;  and whether it prevails depends on the competing interests of Vidal and the public in ascertaining truth in connection with legal proceedings.

If Vidal cannot inquire into the communications and documents received by the arbitrators, as well as their purported prejudices or bias, his ability to pursue his judicial remedies will be impaired.   This would be so whether or not the Credits Manual or some other document explicitly spelled out the requirement that the names of the arbitrators were to be confidential, and whether or not Vidal expressly or impliedly agreed to be bound by such rule.   The trial court appeared to place great weight on the fact that the requirement of confidentiality of the arbitrators was not put in writing.   While we deem this to be of little significance to the issue of the existence of the arbitrators' right of privacy, we do find this fact enters into the balancing test in Vidal's favor.

We find it significant that a Guild member is afforded the right, set out in the Credits Manual, to appeal to the Policy Review Board from a credit arbitration determination on grounds, inter alia, of the arbitrators' dereliction of duty and undue influence.   The Preface to the Manual also espouses a policy in favor of fairness and impartiality:  “The administration of an accurate and equitable system of determining credits is therefore one of the most specific economic services the Guild performs for its members, and it is to a better understanding of this important problem that this Manual is dedicated․  [¶] Arduous and unpleasant as this chore sometimes is, the Guild undertakes it willingly, not only to protect members from embarrassing personal conflicts but also to insure the validity of credit records on which salary standards are based.  [¶] The guiding principle of this system of credit determination is that the writing credits should be a true and accurate statement of authorship.   Fortunately, the written material provides a definite basis for credit determination, and the willingness of experienced writers to read this material carefully and weigh the contributions of the participants insures a fair and impartial decision arrived at by qualified persons.  [¶] The importance of credits demands that they be subject to the closest scrutiny․”

Thus, not only the writer, but the Guild as a whole has an interest in the integrity and fairness of the arbitration procedures, and the Guild purports to afford an internal remedy to vindicate that interest.   Such a remedy would be illusory if a writer could not obtain the names of the arbitrators, as it is difficult to see how an issue such as bias or undue influence could be argued by a writer in Vidal's position if he were not allowed to discover the identities of the arbitrators.   Therefore, not only Vidal, but all other writers and the Guild itself have a substantial concern in the disclosure of the names of the arbitrators as such disclosure is essential to vindicate the very values and interests which the Guild purports to espouse.   Given the tasks and procedures which the Guild has undertaken, it is also manifestly unreasonable for an arbitrator to expect that his or her identity will forever be undisclosed to the participating writers.   While the Manual expressly acknowledges an interest in protecting the writers from “embarrassing personal conflicts,” it does not expressly purport to protect the arbitrators from the consequences of their decisions.   The fact that the Guild has a long-standing practice of keeping the identities of the arbitrators confidential does indicate that the privacy rights of the arbitrators are of concern, but such a practice also serves to insulate the arbitrators from any attempts to unduly influence them or to engage in improper communications.

The Guild argues that the precedential effect of allowing disclosure of the identities of the arbitrators would destroy the Guild's 47–year-old credit arbitration system because no one would agree to serve as arbitrator if his name is made public with the attendant risk of harm to his future possibility for employment in the industry.   What the Guild does not acknowledge is that the very clash of competing claims “of high dignity” is inherent in the system and procedure it has set up, and the effect of an unfair credit arbitration has at least as much of a devastating effect on the writer claiming to be wronged by it.   We thus find the instant case to be distinguishable from the academic tenure cases such as Kahn v. Superior Court, supra, 188 Cal.App.3d 752, 233 Cal.Rptr. 662, wherein the court issued a writ to set aside an order permitting the plaintiff, a nonappointed professor, to take the deposition of the defendant, a tenured professor, in an action for defamation.   The court there found that the public interest in promoting academic excellence outweighed the plaintiff's interest in seeking damages in the action against the other professor who allegedly made derogatory statements about plaintiff's scholarship such that plaintiff was denied appointment.   The court explained:  “[Plaintiff] already has received a comprehensive summary of the events which took place, and the reasons espoused for refusing him an appointment.   To permit him to depose Professor Kahn would allow ‘the most serious breach of the confidentiality of the tenure selection process.’   [citation], and would seriously undermine the public interest in promoting academic excellence.”  (Id., at p. 770, 233 Cal.Rptr. 662, fn. omitted.)   Another factor that apparently entered into the court's analysis was the fact that plaintiff had no right to be employed by the university, and his interest was only in monetary damages.  (Ibid.)

Unlike Kahn, wherein the plaintiff was asserting a right which was found to undermine the tenure selection process, in the instant case both parties appear to assert interests which serve to uphold the integrity of the credit determination system.   Vidal and all writers are promised in the Credits Manual a fair and equitable determination of credits as well as certain procedures and appeal rights to vindicate that determination of credits.   Therefore, while in the case of a tenure candidate, the court, in the interest of fostering academic excellence, was willing to accept the risk that “in the odd case a candidate may be denied tenure for improper reasons” (ibid.), we are less willing to tolerate a risk in the instant case that a writer is improperly denied his due credits, for the simple reason that the Guild itself purports to consider the accuracy and fairness of its credit determination of paramount value.

We thus conclude that the trial court did not abuse its discretion in impliedly determining that the interest of Vidal in discovery outweighed the interest of the arbitrators in confidentiality.   Although the weight the court gave to the various factors is not entirely clear from this record, it is clear that the court recognized that the balancing test it was required to apply was essentially “a policy decision.”   Because Vidal will not be able to aid his attorneys adequately in discovering bias or prejudice against him if the names are disclosed only to his attorney, Vidal must also be able to learn their names.   We find Vidal's interest in disclosure to be substantial enough to outweigh any risk of retribution that the arbitrators claim they may face from Vidal or his attorney.

As to the repercussions to the arbitrators from producers and others in the entertainment industry, we have given serious consideration to the problem of circumscribing the scope of the disclosure and to the court's difficulty in fashioning a protective order granting only partial disclosure or disclosure only under certain conditions designed to protect the privacy interest of the arbitrators.   It is clear that what threatens the privacy interests of the arbitrators is not so much disclosure to the general public as disclosure to those in the entertainment industry who hire writers.   As litigation is essentially public and as Vidal unquestionably will seek to depose and in all probability will subpoena the arbitrators once he knows their names, undoubtedly the arbitrators' names will become a matter of public record.   Once the information is a matter of public record, it is difficult to conceive of a method to prevent its dissemination to the entertainment industry.   When we balance the risk of harm to the arbitrators from public disclosure, which harm at this point is somewhat speculative, with the very real risk to Vidal that he will not be able to continue with his lawsuit, the scales tip in favor of disclosure.   Having considered all of these factors, we are satisfied that the trial court did not abuse its discretion in compelling the Guild to answer Vidal's interrogatory.

In light of our disposition we deem it unnecessary to address Vidal's claim that the arbitrators waived their right to confidentiality by allowing their names to be disclosed to the attorney for Shagan and the Guild, which attorney apparently interviewed the arbitrators in anticipation of their being named defendants in this action.   Were we to address Vidal's claim of waiver, we would reject it as not supported by any authority.

DISPOSITION

The order to show cause and alternative writ are discharged.   The petition is denied.

LILLIE, Presiding Justice.

JOHNSON and REESE *, JJ., concur.