Earlier this year, I posted a blog about a U. S. District Court case, Craig Milhouse and Pamela Milhouse v. Travelers Commercial Insurance Company (Case No. SACV-10-01730-CJC (ANx), C.D. Cal.), in which the court held that a “due process” exception applies to mediation confidentiality. Plaintiffs sued defendant for insurance bad faith. During trial, defendant sought to and was allowed to introduce statements made during mediation to defend itself against such claims. The trial court allowed in such evidence, finding that due process required that the defendant be allowed to present its defense.
As one might suspect, the matter was appealed and cross- appealed to the Ninth Circuit Court of Appeals (Case Nos. 13-56959 and 13-57029). The opening briefs have been submitted and present an interesting juxtaposition on the nature of mediation confidentiality in California.
In their Opening Brief, the Milhouses argue that the mediation confidentiality rule set out in California Evidence Code Section 1119(a), (c) “… is not a mere evidentiary rule; it is a substantive right of privilege conferred by the California legislature” ( Id. at 20- 21), noting that the California Supreme Court has consistently interpreted this statute very broadly, continually holding in case after case that “‘… there are no
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