The ODR Record: Discovery, Privacy and Privilege

Cooking Up Trouble

 

Plaintiff Mary Clark sued her current employer, Cooking, a major national chain of restaurants, for sex discrimination.  Clark alleges that she did not receive a promotion from line cook to back-of-house manager because she is a woman in the “man’s world” of restaurant management.  Clark states that she worked at Cooking as a line cook five years more than the male line cook who received the promotion and the significant pay raise associated with the promotion.  Cooking claims that the person promoted was better qualified than Clark because he had gone to the local culinary school and received an Associate’s Degree in the culinary arts while Clark has no formal education beyond high school.

 

Clark sued Cooking in federal court under Title VII for sex discrimination.  The judge required that the parties go to mediation.  The mediator, Jeff Dale, engaged in a series of e-mail communications between the parties in order to help ready the parties for mediation.  Oddly, the mediator did not send the e-mails messages to all parties, but individually to each party.  Because of this, he had slightly different conversations with the different parties leading up to the mediation.  Ultimately, the in-person mediation session was unsuccessful.  Dale, however, did not want to end the session on a bad note and attempted to continue settlement discussions via e-mail.

 

Dale engaged in lengthy e-mail conversations with Clark’s attorney about potential settlements, including how much Clark would accept in a settlement.  Dale insisted on getting to Clark’s “bottom line.”  Clark suspects that Dale engaged in similar discussions with Cooking’s attorney, and she would like to get those e-mails from Dale as discovery.

 

If Clark asked for all e-mails from Dale to Cooking, what should Dale do?  What should Dale do if Clark sends him a subpoena for all e-mail communications with Cooking?  What if Dale serves a document request to Cooking asking for the same materials?

 

UMA §4(a): “Except as otherwise provided in Section 6, a mediation communication is privileged as provided in subsection (b) and is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by Section 5.” 

 

What if you were in a state (such as Minnesota) that did not adopt the UMA and does not have a similar rule regarding discovery?

 

Moderated by:

 

Kristen M. Blankley is an Assistant Professor at the University of Nebraska College of Law, where she teaches on a wide variety of alternative dispute resolution topics, including negotiation, mediation, and arbitration.  Ms. Blankley also an active scholar in the field of Alternative Dispute Resolution, publishing on arbitration, mediation, and ethics in alternative dispute resolution issues.  She has written on topics including class action arbitrations, judicial review of arbitration awards, mediation ethics, and mediation confidentiality. 

 

 

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My initial thoughts and questions were the same as those set forth by Charity, copied below. I do agree with most of the posters here in that these emails should not be disclosed unless absolutely required by the court. However, on the other hand, I would think that certain obligations may not continue indefinitely. At some point, wouldn't the mediation have to stop? I believe some of that would be on the attorney to tell a mediator the face-to-face negotiations have proved unsuccessful and they wish to pursue options at trial. But, there exists some uncertainty regarding a court ordered mediation where presumably both parties would choose to avoid a hearing compelling continuation of the mediation. 

 

So, to me, I guess I admit I'm rather perplexed by this dilemma. If I were the attorney, my gut feeling says this is confidential information that I would not disclose. Besides, as set forth above by other posters, there appears to be a legitimate argument for withholding said emails. However, I struggle a bit over whether a mediator can (or, maybe should...) continue, on his own will, under the guise of a court order, to "facilitate" a settlement when "formal" mediation appears to have failed. 

Charity Bolling said:

After the failed online and face to face mediation practices, the mediator continued to email the parties.  At what point would the court consider the mediation process to be over?  If the emails that were sent after the face-to-face mediation are not considered to be part of the mediation process, is this information still confidential?  

Really great thoughts, all of you!  Here are a couple of comments, if I may:

 

1.  Yes, mediators can be subpoenaed.  Given the importance of confidentiality in mediation, courts are receptive to motions to quash by mediators (and other mediation parties, too), thus making it quite difficult for parties to actually obtain information from the mediator.  Note that the Nebraska Dispute Resolution Act cited above only applies to mediation associated with one of the six community mediation centers, so the Act is quite limited in its scope and does not apply in cases involving private mediators.

 

2.  I agree with Kaley policy concerns about confidentiality and the importance of confidentiality to ensure frank, honest, and settlement-oriented discussion within the mediation forum.  The confidentiality afforded the mediation would certainly extend to pre-conference communications as well as post-conference communications, provided they are still part of the mediation process.  As Charity noted, the online world poses a number of difficult questions regarding when mediation begins and ends.  I vividly remember a case from my practice in which the mediator agreed to continue working with the parties post-conference via e-mail; however, the mediator's busy schedule put my case on hold and we "mediated online" (largely via e-mail and attached documents) for well over a year after our in-person meetings.  I would consider all of those communications to have been "mediation communications" under the UMA, despite the passage of time.  But every situation is different, and the inquiry is likely quite fact-specific.

 

3.  Another interesting comment went to the issue of whether a court-ordered mediation could occur in cyberspace, as opposed to in-person space.  I am not aware of any courts that have addressed the issue, but courts are generally receptive to mediator discretion and expertise in mediating their own matters. 

 

Thanks for the excellent comments!

Here is another example from my practice that might be of interest:

 

Imagine a situation in which parties attend a mediation session in person, and opposing counsel uses a PowerPoint presentation in the opening statement and throughout the mediation session in order to illustrate points in a certain manner (i.e., as "demonstrative" evidence).  The underlying facts were all disclosed in discovery, but opposing counsel used this PowerPoint presentation to illustrate them in a certain way.  Opposing counsel displayed the PowerPoint presentation in the presence of all parties.

 

Following the mediation, my firm's client filed a document request for that PowerPoint presentation.  The jurisdiction was a UMA jurisdiction.  How do you suppose the court would rule in this situation, given that all parties have already seen this information?

I'm going on a slightly different path here, so forgive me if it sounds off-base. The first question I'm asking myself on this is whether the PP is necessary? Sure, it would be convenient, but if all the underlying facts have already been disclosed in discovery, I'm not sold that a court would find compulsion of the PP necessary. I'd also somewhat question why the opposing party feels they need the PP, but that might be getting too far off topic. 

 

If I were the judge, I would rule that there is no necessity to compel the PP given the facts have already been disclosed. My reasoning is analogous to communications, for example, within a corporation to counsel. I understand the fact situations are distinct and the issues are not the same, but I see an analogy between the two. It's my understanding (and someone feel free to correct me if I'm wrong) that pursuant to Upjohn, counsel cannot ask lower-level workers what communications they had with corporate counsel, but can ask the underlying facts that led to the communications. I find an analogy in this situation that a court will not require compelling this PP presentation when the underlying facts have already been disclosed via proper discovery requests. 

Good thoughts, Garrett.  In the case that I'm referencing, my client wanted the PP presentation (quite obviously) in order to have the advantage of the trial-like presentation and trial strategy embodied in the PP.  The argument to the court was that the rule against discovery of mediation communications intended to protect confidential communications, and that this particular presentation could not be confidential because it was presented to all parties in joint session.

 

I wonder if there are any other thoughts on this scenario before I divulge how the court actually ruled here. 

I am with Garret in questioning the relevance of the PP, but whether an item is discoverable and whether it is admitted in to evidence are two separate issues.

 

The key question is whether the PP is otherwise discoverable.  I party cannot assert the mediation privilege of a document simply because it was used in mediation if it would otherwise be discoverable.


SECTION 4. PRIVILEGE AGAINST DISCLOSURE; ADMISSIBILITY; DISCOVERY.

(c) Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.

 

For discovery, an item must be in within the care, custody, and control of the other party and reasonably lead to the discovery of admissible evidence.  There is likely nothing “new” in the PP, counsel just wants it to dissect the opposing party’s likely factual and legal arguments.  Also, there is no way even if the PP is produced that opposing counsel gets it admitted into evidence, unless the other party introduces it.

 

Mediation and mediation communications are confidential unless agreed to otherwise; however, this presentation was shared with the other side.  I can’t see how after showing the other party the PP the maker had a reasonable expectation that the PP is now confidential.  Also, the maker would be minimally prejudiced by producing a copy of PP to the other party.

 

However, based on section 6 of the UMA because the information is “otherwise” available the PP is likely not required to be produced.

 

SECTION 6. EXCEPTIONS TO PRIVILEGE.

(b) There is no privilege under Section 4 if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in:

(1) a court proceeding involving a felony [or misdemeanor]; or

(2) except as otherwise provided in subsection (c), a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation.

(c) A mediator may not be compelled to provide evidence of a mediation communication referred to in subsection (a)(6) or (b)(2).

(d) If a mediation communication is not privileged under subsection (a) or (b), only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under subsection (a) or (b) does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose.

 

 


Garrett Lutovsky said:

I'm going on a slightly different path here, so forgive me if it sounds off-base. The first question I'm asking myself on this is whether the PP is necessary? Sure, it would be convenient, but if all the underlying facts have already been disclosed in discovery, I'm not sold that a court would find compulsion of the PP necessary. I'd also somewhat question why the opposing party feels they need the PP, but that might be getting too far off topic. 

 

If I were the judge, I would rule that there is no necessity to compel the PP given the facts have already been disclosed. My reasoning is analogous to communications, for example, within a corporation to counsel. I understand the fact situations are distinct and the issues are not the same, but I see an analogy between the two. It's my understanding (and someone feel free to correct me if I'm wrong) that pursuant to Upjohn, counsel cannot ask lower-level workers what communications they had with corporate counsel, but can ask the underlying facts that led to the communications. I find an analogy in this situation that a court will not require compelling this PP presentation when the underlying facts have already been disclosed via proper discovery requests. 

Nice comments, Johann.  What if I told you that the underlying data used to make the PP was already discovered?

 

In other words, the only advantage that firm's client had in discovering the PP was trial strategy and not the underlying facts.  Does that change your answer?

I think a judge is unlikely to grant a motion to compel because the PP is not unique information and it is not going to lead to reasonable discovery. However, I think the slight burden of the production and previous viewing in mediation by the opposing party does favor production.

 

Overall, in the previous comment and with the additional facts I do not think the PP is "otherwise" discoverable and should not be required to be produced.

 

Plus the maker of the PP may have a greater argument that they are "prejudiced" by producing the PP given those facts. 

 

I agree with Andrew. If there were a properly written contract to mediate, then it should bind the mediator to keeping it confidential. I think that you could also write in a clause that binds the mediator to treat communications directly between the parties to something similar to an attorney-client privilege. Further, I think that the e-mails could be seen as an electronic caucus and therefore are confidential between the parties.
I'm thinking that if the sole purpose is to discover trial strategy then there is a very strong argument to keep this out of opposing counsel's hands.

Clearly ODR introduces more challenge to confidentiality with the increased written correspondence.  It seems reasonable to me that any mediation communications  and/or records that the nature/content of which are not discoverable or admissible under the mediation statutes or any applicable case law governing mediation would also be exempt/privileged when only the process changed (F2F to ODR) not the intent and policy behind mediation. In other words F2F mediation should not afford any greater substantive protections than ODR. 

I agree that mediation contracting provides some protections to the parties, but generally from the mediators bad conduct and breaching client confidence. The agreements don't generally impose enforceable prohibitions on the parties about discussing with whomever they choose the happenings and private communications of the mediation.  So, if Cooking voluntarily wants to share the emails don't they have that right to, and can't they always waive any legislative confidentiality protection?

Even still, if the court orders it . . . you gotta give it up.  Unless, you want to take the judge on. 

I may be way off-base here, but I had to wonder after reading:

As far as I understand it, mediation [including other forms of ADR such as ODR] is considered to fall under the definition of a "compromise negotiation".  Under the Federal Rules of Evidence 408(a) evidence would not be admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

Subsection (b) states the rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a).

In following the FRE and UMA it would seem a judge has the option to compel portions of the information being sought through discovery depending upon the content of the requested documents etc...

In the case of the PP, if it discloses to the court any conduct or statements made in compromise negotiations regarding the claim, whether previously discovered, it would likely not be permitted unless the facts could be brought forth through a means other than conduct or statements made in compromise negotiations.

If the facts cannot be offered to the court through another means, I do not believe a judge would compel the PP as it appears to me it would not be admissible in court as evidence.

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