|
Denying a motion to compel disclosure of privileged documents made in anticipation of mediation, an Idaho federal court found that compelling disclosure of privileged documents would discourage parties from pursuing mediation by undermining its confidentiality.
In Duarte v. City of Nampa, No. CV 06-480-S-MHW, 2007 WL 1792325, (D. Idaho Jun. 20, 2007), Duarte, a police officer, suffered an injury at work. After unsuccessfully trying to resume his duties as a police officer, the City terminated him. Duarte filed a discrimination claim with the Idaho Human Rights Commission (IHRC). IHRC determined there was probable cause for finding discrimination and organized mediation between Duarte and the City.
The IHRC dismissed the case at Duarte's request. Duarte sued the City claiming, inter alia, wrongful discharge. Subsequently, the City requested documents relating to the case. The IHRC produced 277 pages of documents, but excluded documents submitted by Duarte's attorney to the IHRC mediator in anticipation of the mediation, including attorney notes and several privileged documents, asserting they were subject to Idaho's mediation privilege. The City moved to compel production of documents asserting that the privilege was waived because the case before the IHRC was dismissed, and that the IHRC was a party, and not a mediator.
The Court denied the City's motion, finding that public policy weighs against disclosing communications between IHRC and Duarte's counsel. Although there are no statutes or case law specifically pertaining to these documents, I.C. § 67-5907(4), which protects public disclosure of counteroffers and the terms of settlement agreements, evinces the Idaho Legislature's intent to safeguard the mediation process, the Court found. Additionally, I.C. § 9-203(5) provides a public officer "cannot be examined as to communications made to him in official confidence, when the public interest would suffer by disclosure." The Court concluded that mediation functions best in a confidential environment and that compelling the IHRC to disclose the documents would undermine the mediation process and discourage parties from pursuing mediation.
Additionally, federal common law's "official information" privilege favors confidentiality. The benefits of disclosing documents tangentially related to the dispute are minimal compared to the downside of discouraging parties from mediating. Moreover, 42 USC §2000e5(b) protects from public disclosure anything said or done during conciliation endeavors. Although the statute is not part of Idaho law, it demonstrates a strong public policy favoring protecting confidentiality during mediation.
Subscribe to a free weekly update on ADR case law and
legislation
|