Opinion
No. CV 98 0077828 S
March 1, 2006
MEMORANDUM OF DECISION, #228 MOTION FOR ORDER AND OBJECTION #239
I
The above-referenced case is, in part, a legal malpractice action. The issue presently before the court is whether the plaintiffs should be allowed to take the deposition of or elicit the testimony from the judge magistrate who conducted confidential mediation sessions between the parties relative to the original malpractice action. The purpose of eliciting testimony from the mediator is to determine whether he believed that a settlement agreement between the parties had been achieved during the course of the mediation sessions. For the reasons set forth below, the court grants the plaintiff's motion.
II
In 1998, the plaintiffs, Sharon Motor Lodge, Inc. and its two officers, Yoke Kiew Chau and Chia Peng Chiang, commenced this action against the defendant, Allan Y. Tai, an attorney who represented them in the purchase of the Sharon Motor Lodge. In their complaint the plaintiffs allege that, after they purchased the motor lodge, it sustained physical damage as a result of flooding, and that the defendant committed malpractice by failing to conduct a title search that would have included an inquiry into whether the property was located in a flood zone, in failing to recommend that they obtain a professional inspection of the septic system and pool on the premises, and by not disclosing that he was not licensed to practice in Connecticut and was not knowledgeable as to Connecticut real estate law and procedures.
The record reveals that after litigation began, the parties entered into non-binding mediation in which United States Magistrate Judge Owen Eagan acted as the mediator. The parties signed a confidentiality agreement, as they were required to do in order to enter into the mediation. The parties disagree as to whether the defendant's attorney was authorized to settle the case, and if so, for what amount. The plaintiffs allege that the defendant's attorney represented that he had authority to settle, and that, at the second mediation session, on May 23, 2001, the parties reached a settlement in the amount of $365,000. The defendant disagrees, contending that his attorney did not have authority to enter into a settlement on behalf of his malpractice insurance carrier and that, therefore, the parties did not reach a settlement.
On July 13, 2001, the plaintiffs filed a motion for judgment on the settlement in the amount of $365,000 plus interest. In August 2001, they filed a motion for determination in which they asked the court to determine whether an agreement had been reached, and sought the disclosure of the results of the mediation sessions from the mediator. The court granted the motion for determination on December 3, 2001, to the extent that it allowed the parties to direct two interrogatories to the mediator. Sharon Motor Lodge, Inc. v. Tai, Superior Court, judicial district of Litchfield, Docket No. CV 98 0077828 (December 3, 2001, Cremins, J.) ( 30 Conn. L. Rptr. 753, 755). The mediator answered the interrogatories, indicating that he thought the parties had reached an agreement to settle the case for $365,000. An evidentiary hearing followed on May 16, 2002, in which the defendant argued that the mediator's understanding of the settlement was the result of a miscommunication, and both the defendant's attorney and a representative of his malpractice insurance carrier denied that they had reached a settlement with the plaintiffs.
On June 25, 2002, the plaintiffs filed a motion asking the court to order the mediator to testify. The court, Cremins, J., denied both the plaintiffs' motion for judgment and their motion to order the testimony of the mediator. As to the former, the court ruled that it would not enforce the terms of the alleged settlement agreement because of the disagreement over its existence. The plaintiffs appealed the trial court's decisions on these motions. The Appellate Court found that the trial court's ruling on the motion for judgment was not a final judgment and, therefore, dismissed the appeal. Sharon Motor Lodge, Inc. v. Tai, 82 Conn.App. 148, 842 A.2d 1140, cert. denied, 269 Conn. 908, 852 A.2d 738 (2004).
Because the Appellate Court concluded that the trial court's denial of the plaintiffs' motion for judgment was not a final judgment, it did not reach the plaintiffs' claim that the trial court improperly denied their motion to compel the mediator to testify. Sharon Motor Lodge, Inc. v. Tai, supra, 82 Conn.App. 152 n. 5.
Meanwhile, on July 16, 2001, the plaintiffs filed a request to amend their initial complaint to add five counts in which they allege that the parties reached a settlement agreement and the defendant breached the agreement. The defendant filed an objection to the request to amend, which was overruled by the court, Pickard, J.
On October 17, 2005, the plaintiffs filed the motion that is presently before the court, i.e, a motion for an order to permit them to take the deposition and/or testimony of the mediator as to the issues presented in the counts that they added in the amended complaint. The plaintiffs contend that the mediator's testimony is relevant, material and probative as to the issues, is permitted by the exceptions outlined in General Statutes § 52-235d(b), and that the interest of justice calls for this order so that the court may utilize all rational means for ascertaining the truth. The defendant objects to the motion on the ground that the information that the plaintiffs seek is not discoverable under § 52-235d.
III
The first issue is whether the doctrine of the law of the case is implicated in the court's consideration of the present motion. As previously noted, in 2001, the plaintiffs filed a motion for determination in which they asked the court to permit them to obtain disclosure of the results of the mediation from the mediator on the grounds that such disclosure was warranted under § 52-235d(b)(2), (3) and (4). The defendant opposed the motion on policy grounds and on the ground that the statutory exceptions upon which the plaintiffs relied did not apply. The court, noting that case law interpreting the statute was "sparse," engaged in its own statutory interpretation. Sharon Motor Lodge, Inc. v. Tai, supra, 30 Conn. L. Rptr. 754. The court concluded that "pursuant to § 52-235d(b)(4) . . . in the interest of justice, the need for the disclosure of relevant communications made during the mediation outweighs the parties' need for confidentiality in order to determine whether a settlement agreement was reached at the mediation." Sharon Motor Lodge, Inc. v. Tai, supra, 30 Conn. L. Rptr. 755. The court granted the motion to the extent that it permitted the plaintiffs to direct two interrogatories to the mediator. Id.
Specifically, the court stated: "The plaintiffs' motion for determination is granted limited to the submission of the following interrogatories to the Honorable F. Owen Eagan:
(1) Is it your understanding that the parties in the matter of Sharon Motor Lodge, Inc. et al. v. Allan Y. Tai, mediated before you on April 12, 2001 and on May 23, 2001 reached an agreement ending their lawsuit.
___ Yes ___ No
(2) If the answer to question (1) is yes, what was your understanding as to the terms of the settlement agreement."
The mediator responded to the interrogatories, indicating that he understood that the parties had reached a settlement. Nevertheless, the defendant continued to maintain that they had not. The plaintiffs then filed a motion asking the court to order the mediator to testify. The court, Cremins, J., denied the motion without issuing a written decision thereon. The court then denied the plaintiffs' motion for judgment on the settlement on the basis that the parties disagreed as to whether they had reached a settlement. The plaintiffs appealed both decisions. Although the Appellate Court did not reach the issue of whether the trial court properly denied the motion to order the mediator to testify, it did discuss the trial court's order, noting that the trial court "had to decide, in its discretion, whether further disclosure by the mediator [beyond the two interrogatories] was required `as a result of circumstances' and whether the `interest of justice outweighs the need for confidentiality, consistent with the principles of law.' General Statutes § 52-235d(b)(4). The court, at a hearing, was able to discern the circumstances of the alleged settlement and could assess the credibility of the testimony proffered. The court found that the testimony of the mediator should not be ordered." Sharon Motor Lodge, Inc. v. Tai, supra, 82 Conn.App. 160. The Appellate Court also stated that, in denying the order, the trial court "impliedly [found] that `as a result of the circumstances,' it did not find `that the interest of justice outweighs the need for confidentiality' of the mediator's testimony. General Statutes § 52-235d(b)(4)." Sharon Motor Lodge, Inc. v. Tai, supra, 82 Conn.App. 153. Thus, this court has twice determined, at least by implication, that the mediator should not be ordered to testify under the "interest of justice" exception of § 52-235d(b)(4).
Under the doctrine of the law of the case, "[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). Under this doctrine, absent "new or overriding circumstances" the court has the discretion to treat its earlier decisions on the same issue in the matter as the law of the case. Wasko v. Manella, 87 Conn.App. 390, 396, 865 A.2d 1223 (2005). On the other hand, if new or overriding circumstances do exist, the court should consider a party's subsequent motions pertaining to an issue that it has previously considered. Wagner v. Clark Equipment Co., Inc., 259 Conn. 114, 131, 788 A.2d 83 (2002).
In the present matter, new and overriding circumstances exist in that the plaintiffs were previously seeking to summarily enforce the settlement agreement, which required them to provide evidence that the terms of the agreement were "clear and unambiguous." Audubon Parking Associates, Ltd. Partnership v. Barclay Stubbs, Inc., 225 Conn. 804, 811, 626 A.2d 729 (1993). Since that time, the plaintiffs have amended their complaint to include allegations that the defendant breached the settlement agreement, and the defendant has filed an answer denying these allegations. Therefore, the existence of the agreement is at issue.
Moreover, in their previous motions, the plaintiffs asked the court to order the mediator to testify and "to admit evidence from the mediation . . ." Sharon Motor Lodge, Inc. v. Tai, supra, 30 Conn. L. Rptr. 754. In the present motion, they seek the court's permission to depose the mediator "as to the limited issues presented by trial of Counts 3-7 of the Plaintiffs' amended complaint." As the Supreme Court has noted, "[e]vidence may be elicited at a discovery deposition even though `the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.' Practice Book § 218 [now § 13-2]. Thus the allowable scope of inquiry at a discovery deposition clearly exceeds the boundaries of admissible evidence." Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 139, 491 A.2d 389 (1985).
Given the new circumstances, this court declines to treat the trial court's previous determinations regarding whether the parties can introduce the testimony of the mediator into evidence as the law of the case relative to the plaintiffs' present motion to depose the mediator.
"Our rules of practice provide guidelines to facilitate the discovery of information relevant to a pending suit." Sanderson v. Steve Snyder Enterprises, Inc., supra, 196 Conn. 139. Practice Book § 13-2 defines the scope of discovery as follows: "In any civil action . . . where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain in accordance with the provisions of this chapter discovery of information . . . material to the subject matter involved in the pending action, which [is] not privileged, whether the discovery or disclosure relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, and which [is] within the knowledge, possession or power of the . . . person to whom the discovery is addressed. Discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action and it can be provided by the disclosing . . . person with substantially greater facility than it could otherwise be obtained by the party seeking disclosure. It shall not be ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence . . ."
Our Supreme Court "[has] long recognized that the granting or denial of a discovery request rests in the sound discretion of the [trial] court . . ." (Internal quotation marks omitted.) Olson v. Accessory Controls Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2000). "That discretion is limited, however, by the provisions of the rules pertaining to discovery; Practice Book §§ 217-21 [now § 13-2 to 13-5]; especially the mandatory provision that discovery ` shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action . . .' (Emphasis added.) Practice Book § 218 [now § 13-2]. The court's discretion applies to decisions concerning whether the information is material [or] privileged . . . as stated in [§ 13-2]. A complete denial of discovery, however, is seldom within the court's discretion unless the court finds that one or more of the limitations on discovery expressed above applies." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57-60, 459 A.2d 503 (1983).
One category of information that is generally exempt, or privileged, from being discovered is information regarding non-court-ordered mediation. General Statutes § 52-235d, which governs this issue, provides in relevant part: "(b) Except as provided in this section, by agreement of the parties, or in furtherance of settlement discussions, a person not affiliated with either party to a lawsuit, an attorney for one of the parties or any other participant in a mediation shall not voluntarily disclose or, through discovery or compulsory process, be required to disclose any oral or written communication received or obtained during the course of a mediation, unless (1) each of the parties agrees in writing to such disclosure, (2) the disclosure is necessary to enforce a written agreement that came out of the mediation, (3) the disclosure is required by statute or regulation, or by any court, after notice to all parties to the mediation, or (4) the disclosure is required as a result of circumstances in which a court finds that the interest of justice outweighs the need for confidentiality, consistent with the principles of law.
"(c) Any disclosure made in violation of any provision of this section shall not be admissible in any proceeding."
"(d) Nothing in this section shall prevent (1) the discovery or admissibility of any evidence that is otherwise discoverable merely because such evidence was presented during the course of the mediation . . ."
The plaintiffs argue that the court should grant their motion for the following reasons: 1) the mediator's testimony is required in that the interest of justice calls for his testimony under the common law, and this interest outweighs the need for confidentiality, as provided for in § 52-235d(b)(4); 2) the mediator's testimony is relevant material and probative on the issue of whether there was a settlement and, if so, what the terms of that settlement were; and 3) both parties have agreed in writing to the disclosure, as provided in § 52-235d(b)(1) in that both parties have, at different times, sought to compel the mediator's testimony. The defendant opposes the motion on the grounds that requiring the mediator's testimony would violate the principles of confidentiality and his testimony is not discoverable under any of the exceptions provided for in § 52-235d(b).
Little guidance exists in Connecticut case law as to the use of the statutory privilege contained in § 52-235d(b) or the exceptions thereto. Our Supreme and Appellate Courts have not addressed this precise issue. Although judges of this court and the federal district court have done so, the decisions in which they addressed these issues are not instructive as to the scope of the privilege or the exceptions. As such, this court has closely analyzed the subject statute in an effort to ascertain and give effect to the intent of the legislature.
In Moore v. Lieberman, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 98 0087620 (April 23, 2001, Gilardi, J.), the court, in rendering a decision on the plaintiff's motion to summarily enforce a settlement agreement, considered documents that had been received or obtained during the course of mediation. In response to the defendants' argument that § 52-235d prohibited the court from considering the documents, the court found that they had waived the statutory protection by submitting the documents to the court and that "in the interests of justice, [the] court's need for the materials outweighs the parties' need for confidentiality in order to determine whether an unambiguous settlement agreement exists." Moore v. Lieberman, supra, Superior Court, Docket No. CV 98 0087620, n. 4. In making its determination, however, the court did not further explore or articulate the reasons that contributed to its decision. Id. Therefore, Moore is of little assistance in determining the contours of the relevant exception.
In New Horizon Financial Services, LLC v. First Financial Equities, Inc., 278 F.Sup.2d 259, 263 (D.Conn. 2003), in which the plaintiff sought summary enforcement of a settlement agreement, the federal district court granted the plaintiff's request to call the mediator to testify at an evidentiary hearing. The court relied on this court's decision granting the plaintiffs' motion for determination, see Sharon Motor Lodge, Inc. v. Tai, supra, 30 Conn. L. Rptr. 753, and concluded that "pursuant to § 52-235d(b)(4), `disclosure is required as a result of circumstances in which a court finds that the interest of justice outweighs the need for confidentiality, consistent with the principles of law' . . ." New Horizon Financial Services, LLC v. First Financial Equities, Inc., supra, 278 F.Sup. 263. The court did not, however, detail the reasons that led to its determination. Therefore, New Horizon Financial Services, LLC, does not provide guidance as to the issue presented here.
"In undertaking this analysis, we are mindful that, as with any claim of privilege, a statutory privilege has the effect of withholding relevant information from the factfinder . . . Accordingly, although a statutory privilege must be applied so as to effectuate its purpose, it is to be applied cautiously and with circumspection because it impedes the truth-seeking function of the adjudicative process." (Citations omitted; internal quotation marks omitted.) Babcock v. Bridgeport Hospital, 251 Conn. 790, 819, 742 A.2d 322 (1999) (discussing statutory privileges accorded to certain medical records).
"It is well settled that in construing statutes, [the court's] fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . and that `[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.' General Statutes § 1-2z." (Internal quotation marks omitted.) Alexson v. Foss, 276 Conn. 599, 604-05, 887 A.2d 872 (2006). "The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Alexson v. Foss, supra, 276 Conn. 605.
Previously in this case, in deciding the plaintiffs' motion for determination, the court engaged in a statutory interpretation of § 52-235d(b) and concluded that its purpose was to ensure the confidentiality of the alternative dispute resolution proceedings involved in non-court-ordered mediation. Sharon Motor Lodge, Inc. v. Tai, supra, 30 Conn. L. Rptr. 754. This conclusion is consistent with both the plain language of the statute and its legislative history. See 41 H.R. Proc., Pt. 5, 1998 Sess., p. 1425, remarks of Representative Michael P. Lawlor ("[t]his bill simply clarifies that voluntary disclosure made during the course of a mediation which is not court ordered is not subject to further disclosure in court. In other words, it allows for confidential mediations to take place"). It is also consistent with the theory that provisions for ensuring the confidentiality of alternative dispute resolution proceedings will encourage parties to use these measures. See State Board of Labor Relations v. Freedom of information Commission, 244 Conn. 487, 500, 709 A.2d 1129 (1999) ("requiring proceedings before the mediation board to be open to the public would create a significant deterrent to parties considering arbitration before the mediation board. This, in turn, would work to defeat the legislature's goal of providing low cost arbitration services as an effective alternative to private arbitrators to facilitate the resolution of labor disputes"). Turning to the first exception at issue, the plain language of § 52-235d(b)(1) provides that communications received or obtained during a mediation is discoverable if the parties agree in writing to the disclosure. It is reasonable to conclude that, given the general intent of the statute, this exception applies to previously undisclosed communications if the parties expressly agree to the disclosure and their agreement is reasonably near in time to the proposed disclosure. Here, the written document that the plaintiffs rely on is a subpoena duces tecum that the defendant filed approximately four years ago. This document does not satisfy the requirements of this exception because it is too remote in time to the proposed disclosure.
See Section 5(a) of the Uniform Mediation Act, which provides in relevant part: "A privilege [of confidentiality of mediation communications] may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and: (1) in the case of the privilege of the mediator, it is expressly waived by the mediator . . ." National Conference of Commissioners on Uniform State Laws, Uniform Mediation Act, Section 5(a), "Waiver and Preclusion of Privilege." (2003). As the reporter comments, "[s]ignificantly . . . the mediation privilege does not permit waiver to be implied by conduct . . . The rationale for requiring explicit waiver is to safeguard against the possibility of inadvertent waiver . . ." Id., comment 1.
As to the other exception that the plaintiffs rely upon, i.e., § 52-235d(b)(4), its language is plain and unambiguous to the extent that it does not, unlike mediation confidentiality provisions in other jurisdictions, categorically bar a party from obtaining the testimony of a mediator. See, e.g., Cal. Evid. Code § 703.5 (except in very limited circumstances, "no . . . mediator . . . shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding").
More to the point, however, the language of the statute is not plain and unambiguous in that it does not provide guidance for determining the circumstance in which "the interest of justice" will outweigh "the need for confidentiality, consistent with the principles of law." The plaintiffs' contention, that such circumstances exist where, as in the present case, the matter before the court involves claims that are premised upon allegations that the defendant agreed to a settlement in the course of the mediation and then breached the agreement is reasonable, but so is the defendant's argument that allowing for disclosures in such circumstances might undermine the policy of encouraging parties to engage in alternative dispute resolution. In order to determine the parameters of this exception, the court will "look for interpretive guidance to the legislative history and circumstances surrounding [the statute's] enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . ." (Internal quotation marks omitted.) Cogan v. Manhattan Auto Financial Corp., 276 Conn. 1, 7, 882 A.2d 597 (2005).
First, and again as previously noted in this case, the legislative history of § 52-235d(b) does not clarify the intent of the legislature in crafting the exceptions contained therein. Sharon Motor Lodge, Inc. v. Tai, supra, 30 Conn. L. Rptr. 754. To the extent that the general intent of the statute is to "[preserve] the candidness of discussions that take place during mediation and [to maintain] the integrity and confidentiality of the mediation process"; id., 753; its intent is similar to the policies underlying the attorney-client and attorney work product privileges. See National Conference of Commissioners on Uniform State Laws, Uniform Mediation Act (Uniform Mediation Act), Section 4 "Privilege Against Disclosure; Admissibility; Discovery," Reporter's Comment 4(a)(2), (2003) ("the mediation privilege of the parties draws upon the purpose, rationale, and traditions of the attorney-client privilege, in that its paramount justification is to encourage candor by the mediation parties, just as encouraging the client's candor is the central justification of the attorney-client privilege"). See also Alford v. Bryant, 137 S.W.3d 916921-22 (Tex.Civ.App. 2004), cert. denied, 2005 Tex. LEXIS 375 (Tex. 2005) (privilege accorded confidential mediation communications analyzed in accordance with standards applicable to attorney-client privilege).
See Metropolitan Life Ins. Co. v. Aetna Casualty Surety Co., 249 Conn. 36, 52, 730 A.2d 51 (1999) (attorney-client privilege "created to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observation of law and administration of justice" [internal quotation marks omitted]); and Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947) (work product privilege premised on policy that "it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel . . . [Absent the privilege] [i]nefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial . . . And the interests of the clients and the cause of justice would be poorly served.").
When § 52-235d(b) is considered in conjunction with these privileges, the exception recognized in § 52-235d(b)(4) appears to be similar to the "at issue" exception to the privilege that is accorded to attorney-client communications under common law and to the "substantial need" exception to the privilege accorded to attorney work product under Practice Book § 13-3(a). The parameters of these exceptions, therefore, provide guidance in deciding the scope of § 52-235d(b)(4).
The exception recognized in § 52-235d(b)(4) is also similar to § 4-8 of the Connecticut Code of Evidence, which provides: "(a) General rule. Evidence of an offer to compromise or settle a disputed claim is inadmissable on the issues of liability and the amount of the claim. (b) Exceptions. This rule does not require the exclusion of: (1) Evidence that is offered for another purpose, such as proving bias or prejudice of a witness . . . or (2) statements of fact or admissions of liability made by a party." Although, as a court in another jurisdiction noted, "[t]he confidentiality protections of [the mediation confidentiality statute] are broader than the exclusionary rule set forth in rule [4-8] . . . similar policy concerns underlie both provisions." Avary v. Bank of America, N.A., 72 S.W.3d 779, 798 (Tex.Civ.App. 2002), cert. denied, (Tex. 2003). Like the mediation privilege, the general rule that evidence of attempts to settle an action is not admissible "reflects the strong public policy of promoting settlement of disputes." Miko v. Commission on Human Rights Opportunities, 220 Conn. 192, 209, 596 A.2d 396 (1991).
Indeed, in his motion to strike the plaintiffs' claims relating to the settlement agreement, the defendant argued that evidence regarding these claims is inadmissible pursuant to § 4-8(a). As the court noted in denying the defendant's motion, "[t]his ground is not well-founded. The five counts all allege that an actual agreement was reached. The evidence to which the defendant objects will not be offered for the purpose of establishing liability in the case in chief or on the issue of the amount of the claim. Evidence will be offered on the issue of whether the parties reached an enforceable agreement to settle their claim . . . The essential issue in the five new counts is . . . breach of contract. Proof of these counts will be by the normal fair preponderance of the evidence. Section 4-8(a) does not preclude the prosecution of these counts." Sharon Motor Lodge, Inc. v. Tai, Superior Court, judicial district of Litchfield, Docket No. CV 98 0077828 (December 14, 2004, Pickard, J.).
Generally, "[e]xceptions to the attorney-client privilege should be made only when the reason for disclosure outweighs the potential chilling of essential communications." Metropolitan Life Ins. Co. v. Aetna Casualty Surety Co., 249 Conn. 36, 52, 730 A.2d 51 (1999). Specifically, "[b]ecause of the important public policy considerations that necessitated the creation of the attorney-client privilege, the `at issue,' or implied waiver, exception is invoked only when the content of the legal advice is integral to the outcome of the legal claims of the action . . . Such is the case when a party specifically pleads reliance on an attorney's advice as an element of a claim or defense . . . or specifically places at issue, in some other manner, the attorney-client relationship. In those instances the party has waived the right to confidentiality by placing the content of the attorney's advice directly at issue because the issue cannot be determined without an examination of that advice." (Citation omitted; emphasis added.) Id., 52-53.
The court cautioned that "[m]erely because the communications are relevant does not place them at issue." Metropolitan Life Ins. Co. v. Aetna Casualty Surety Co., supra, 249 Conn. 54. In addition, "[w]hen privileged communications are not at issue, the opposing party cannot destroy the attorney-client privilege by merely claiming a need for the documents. It would be inconsistent with the nature and purpose of the [attorney-client] privilege to make an exception to the privilege based only on the unavailability of information from other sources." (Internal quotation marks omitted.) Id., 56-57.
As to the attorney work product privilege, Practice Book § 13-3(a), provides that "a party may obtain discovery of documents and tangible things otherwise discoverable under Section 13-2 and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the judicial authority shall not order disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation."
Despite the seemingly absolute nature of the privilege as it pertains to "mental impressions, conclusions, opinions and legal theories of an attorney," our courts have determined that such materials may be discovered if they are "essential to the party's claim" and "could never be obtained by the [party] through any other legitimate means." Cloutier v. Liberty Mutual Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV 90 0278184 (March 6, 1998, Mottolese, J.) ( 21 Conn. L. Rptr. 472, 474), aff'd per curiam, 60 Conn.App. 904, 759 A.2d 1056, cert. denied, 255 Conn. 919, 763 A.2d 1040 (2000).
"Once a party has demonstrated that the material sought is work product, then the party seeking discovery has to make the requisite showing of both substantial need and undue hardship to obtain disclosure." Garcia v. Yale New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 95 0373032 (July 2, 1999, Lager, J.) ( 25 Conn. L. Rptr. 78, 79). "`Substantial need' is established if the information contained in the documents is essential to the movant for example by containing the essential elements of a prima facie case, [6] J. Moore's Federal Practice . . . § 26.70[5][c] [3d ed. 1997], or by containing facts that demonstrate the opposing party's knowledge. There is no substantial need when the documents contain material that is merely helpful but not essential . . . or there are alternative means available to the movant to obtain the substantial equivalent of the information." Garcia v. Yale New Haven Hospital, supra, 25 Conn. L. Rptr. 80. As to the second element, "[c]ourts have found undue hardship when a witness is unable to recall information contained in work product or is no longer available, or if the cost to obtain the equivalent information is unusually high." Id. Overall, "the inquiry . . . is whether the necessity for the plaintiff to discover these materials outweighs the . . . right to immunity from discovery." Cloutier v. Liberty Mutual Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV 90 0278184 (March 6, 1998, Mottolese, J.) ( 21 Conn. L. Rptr. 472, 474), aff'd per curiam, 60 Conn.App. 904, 759 A.2d 1056, cert. denied, 255 Conn. 919, CT Page 4101 763 A.2d 1040 (2000).
"Work product can be defined as the result of an attorney's activities when those activities have been conducted with a view to pending or anticipated litigation." (Internal quotation marks omitted.) Ullmann v. State, 230 Conn. 698, 714, 647 A.2d 324 (1994).
Applying these standards to § 52-235d(b)(4), a party that seeks the disclosure of privileged mediation communications can obtain such material on the basis that disclosure is required in that "the interest of justice outweighs the need for confidentiality" if the party shows that it has a substantial need for the materials, i.e., that the materials are essential to its claims or defenses, that it would suffer undue hardship if the materials were not disclosed, and that these two considerations outweigh the interests of preserving the confidentiality of the communications. This standard balances "the public interest in protecting the confidentiality of the settlement process and countervailing interests, such as the right to every person's evidence." In re Anonymous, 283 P.3d 627, 637 (4th Cir. 2002).
It is noteworthy that courts in other jurisdictions have applied similar standards in deciding whether information disclosed in mediation sessions is subject to disclosure. See id. (disclosure not allowed "unless the party seeking such disclosure can demonstrate that `manifest injustice' will result from non-disclosure . . . Application of the . . . standard requires the party seeking disclosure to demonstrate that the harm caused by non-disclosure will be manifestly greater than the harm caused by disclosure."); and State v. Williams, 184 N.J. 432, 452-53, 877 A.2d 1258 (2005) (disclosure not allowed unless need for disclosure outweighs interest in protecting confidentiality, i.e., disclosure necessary to prove claim and evidence not otherwise available).
In addition, the most recent version of the Uniform Mediation Act provides an exception to the confidentiality of mediation communications "if a court . . . finds, after a hearing in camera, that the party seeking discovery . . . 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 . . . in . . . a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation." Uniform Mediation Act supra, Section 6, "Exceptions to Privilege."
In order to determine whether the plaintiffs have a substantial need for the testimony of the mediator, it is necessary to review the elements of their claims that the defendant breached the settlement agreement. "A settlement agreement is a contract that is interpreted according to general principles of contract law . . . In Connecticut, a contract is binding if the parties mutually assent to its terms. Ubysz v. DiPietro, 185 Conn. 47, 51, 440 A.2d 830, 833 (1981); see Johnson v. Schmitz, 237 F.Sup.2d 183, 189 (D.Conn. 2002) (applying this rule to settlement agreements). When both parties have mutually assented to a contract, the agreement is binding even if it is not signed. Schwarzschild v. Martin, 191 Conn. 316, 321-22, 464 A.2d 774, 777 (1983); see Millgard Corp. v. White Oak Corp., 224 F.Sup.2d 425, 432 (D.Conn. 2002) (applying this rule to settlement agreements)." (Citations omitted.) Omega Engineering, Inc. v. Omega, S.A., CT Page 4102 432 F.3d 437, 443-44 (2d Cir. 2005).
On the other hand, "[t]he Connecticut Supreme Court has held that `[a] contract is not made so long as, in the contemplation of the parties, something remains to be done to establish the contractual relation.' Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58, 61 (1974). The parties' intent is determined from the (1) language used, (2) circumstances surrounding the transaction, including the motives of the parties, and (3) purposes which they sought to accomplish. Id.; see Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 160-61, 714 A.2d 21, 27 [cert. denied, 247 Conn. 905, 720 A.2d 516] (1998) (same)." Omega Engineering, Inc. v. Omega, S.A., supra, 432 F.3d 444.
It is arguable that the plaintiffs have a substantial need to elicit testimony of the mediator in order to obtain evidence relating to the first two factors, which are essential to their claims. Moreover, the question of the validity of the defendant's assertion that his attorney did not have the authority to settle the action is at issue, and it is apparent that evidence regarding any representations that the attorney or the parties may have made to the mediator regarding this issue is not available from other, unprivileged sources.
In balancing these factors against the interest of maintaining the confidentiality of mediation proceedings, it is important to recognize that "[i]f mediation confidentiality is important, the appearance of mediator impartiality is imperative. A mediator, although neutral, often takes an active role in promoting candid dialogue . . . To perform that function, a mediator must be able to instill the trust and confidence of the participants in the mediation process. That confidence is insured if the participants trust that information conveyed to the mediator will remain in confidence. Neutrality is the essence of the mediation process . . . Thus, courts should be especially wary of mediator testimony because no matter how carefully presented, [it] will inevitably be characterized so as to favor one side or the other." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Williams, supra, 184 N.J. 447-48.
On the other hand, as another court observed in declining to recognize a mediator privilege, "[w]hile confidentiality appears to be widely accepted in state law as a desirable component of the mediation process, there are legitimate countervailing interests to be accounted for in formulating a privilege that is invocable by a mediator, not the least of which is the venerable `right to every man's evidence.'" Smith v. Smith, 154 F.R.D. 661, 671 (N.D.Tex. 1994). Furthermore, "[t]o accept as a given that the process of private party mediation should take place in confidence is not of itself sufficient to excuse a mediator from an obligation of disclosure upon the request of a disputant. When the question to be resolved is whether the mediator should have protected status, the balancing of competing interests will only properly take place in the context of the mediator, not of mediation in its broadest sense." Id., 673-74. In addition, as the court noted, "[p]roponents of a mediator privilege must reckon with the important right of litigants to obtain all available evidence, a right that arguably is paramount to some of the interests relied upon to justify immunizing mediators from compulsory disclosure." Id., 674-75. Accordingly, the court concluded, "[w]hen a litigant seeks to assert a privilege not recognized in the common law, the court must test it by balancing the policies behind the privilege against those favoring disclosure." Id.
The court noted that, by "`mediator privilege' the court refers to a privilege invocable by the mediator, with or without the consent of a client or other mediation participant." Smith v. Smith, 154 F.R.D. 661, 670 n. 11 (N.D.Tex. 1994).
The court added, "certain of the reasons on which advocates of a mediator privilege stand are subject to question. There are those who challenge the validity of concerns regarding an appearance of mediator impartiality . . . Furthermore, one can arguably question the validity of predictions of a shortage of mediators including able ones if a mediator privilege is not adopted." (Citations omitted.) Smith v. Smith, supra, 154 F.R.D. 675.
In the present case, it would not serve the policy considerations of encouraging settlement by mediation or the policy favoring disclosure if a party was able to use mediation proceedings to engage in behavior that is prejudicial to the rights of other parties and then use the mediation privilege to insulate himself or herself from liability. See Avary v. Bank of America, N.A., 72 S.W.3d 779, 800 (Tex.Civ.App. 2002), cert. denied, 2005 Tex. LEXIS 375 (Tex. 2005). Moreover, such conduct is counter to the policy of ensuring that "agreements reached during mediation are enforced, thereby upholding the policy of judicial economy, the very reason mediation is encouraged." Sharon Motor Lodge, Inc. v. Tai, supra, 30 Conn. L. Rptr. 753.
IV
In these circumstances, the interest of justice outweighs the need for confidentiality. The court grants plaintiff's motion for order #228. The scope of the testimony shall be limited to the issues set forth in counts 3-7 of plaintiff's amended complaint dated July 16, 2001.
SO ORDERED. CT Page 4104