In Continental Casualty Co. v. St. Paul Surplus Lines Insurance Co., Download Continental Casualty Co. v. St. Paul Surplus Lines Insurance Co. (E.D. Cal. Case No. 2-07-1744, Magistrate Judge Opinion Filed March 30, 2010) also published as 265 F.R.D. 510 (E.D. Cal. 2010) a United States Magistrate Judge construed the California so-called "Mediation Privilege". The resulting Order is subject to a hotly contested pending motion for reconsideration even as this post is written.
In Continental v. St. Paul Surplus, the Magistrate Judge was called upon to address certain materials containing claimed "communications" made by participants in a confidential Mediation. However, these participants revealed their Mediation "communications," if such they were (and there seems to have been an issue about that), to a nonparticipant, namely, St. Paul Surplus. Whatever "Mediation Privilege" may have attached to documents reflecting those revealed "communications" was held inapplicable because of the revelation of those "communications" to St. Paul Surplus, which did not participate in the Mediation. Continental v. St. Paul Surplus, 265 F.R.D. at 529-30.
In this case, "Continental seeks declaratory relief, equitable contribution, indemnity and subrogation from St. Paul." Id. at 513. St. Paul Surplus alleges that Continental's claims are barred by "unclean hands," id. at 514, an equitable doctrine which includes lack of Good Faith and, affirmatively, Bad Faith. There is no reason to anticipate any different result in this case if there had also been claims alleged for Bad Faith Damages.
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Posted by: mediation services | March 09, 2011 at 04:36 AM