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Does Mediation Shield Otherwise Discoverable Data from Production?

Posted on September 1st, 2014

Mediation can be an integral part of any plaintiffs’ strategic planning. In Francesca Gonzales, et al., v. T-Mobile, USA, Inc., et al., Case No. 13cv1029-BEN (BLM). (S.D. Cal. August 14, 2014), Defendants sought a protective order that would block Plaintiffs from using data compilations that were provided for mediation purposes.

Plaintiffs brought a class action suit on behalf of all of Defendant’s employees that worked in California. Plaintiffs asserted that Defendant’s automated commission accounting system did not accurately reflect all of the commissions that were earned by members of the purported class, which resulted in a systematic underpayment of commissions and bonuses.

The parties entered into an agreement to stay general discovery and to focus only on discovery required for mediation. Defendant claimed that in response to this, it conducted specific computer searches, gathered, complied, and produced electronic data to Plaintiffs. Plaintiffs then advised Defendant’s counsel about their intention to use some of the data produced to support their motion for class certification.

Defendant sought a protective order on the grounds that:

1. It “informally” provided data compilations for the sole purpose of allowing Plaintiffs to prepare for mediation;

2. It expended significant resources searching for, obtaining, and compiling the data; and

3. The documents produced were not business records.

Plaintiffs countered, stating:

1. Defendant is using a mediation shield to protect raw data pulled entirely from contemporaneous business records which existed prior to, and independent of, the mediation process; and

2. The disputed computer data is raw data, subject to discovery that was maintained as business records, and, as such, is not protected by the mediation privilege.

In applying California state law, per diversity jurisdiction protocol, the court found that California law limited the scope of inadmissibility by precluding evidence that was otherwise admissible or subject to discovery outside of mediation from becoming inadmissible or protected from disclosure solely because of its use in a mediation.

The court applied this rule to a few salient facts:

1. The challenged data existed before the parties engaged in mediation discussions;

2. Defendant represented that it could produce the data pursuant to Plaintiffs’ discovery requests;

3. The produced data was not marked for mediation purposes only; and

4. The data was prepared for Defendant’s business use before the contemplated mediation.

Accordingly, the court denied Defendant’s motion for a protective order.

ILS – Plaintiff eDiscovery Experts

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