MEDIATION PRIVILEGE NOT A SHIELD TO PRODUCTION OF DATA OTHERWISE DISCOVERABLE OUTSIDE MEDIATION

摘要

One of the fundamental principles of media- tion is confidentiality: That what is said and written in mediation, stays in mediation. However, this principle of confidentiality cannot be abused, and a party will not be allowed to use mediation as a pretext to shield materials from disclosure that are otherwise admissible or subject to discovery outside of mediation. In Francesca Gonzales, et. al., v. T-Mobile, USA, Inc., et al., Case No. 13cv1029-BEN (BLM) (S.D. Cal. Aug. 14, 2014) (bit. ly/1y824Zh), while discovery requests were pending in an employment class action, the parties agreed to stay general discovery and to focus on discovery required for mediation. The parties also jointly moved the court on three separate occasions to continue expert disclosure and extend class certification filing deadlines. The court declined the parties' third request to extend the class certification deadline and set the new deadline for class certification before the parties' scheduled mediation. Plaintiffs then advised defendants counsel that they intended to usesome of the data produced by defendant to support their motion for class certification. Defendant refused and asserted that all of the data and documents intended to be used by plaintiffs were protected by the mediation privilege. Defendant alleged that, contrary to plaintiffs' characterization of the produced data as "raw data," it had expended significant resources searching for, obtaining, and compiling the data, and that it did so in order to accommodate mediation. Moreover, defendant claimed that the documents it had produced were not business records.