In Wilcox v. Maricopa County, published June 2, 2014, the 9th Circuit Court of Appeals affirmed a district court order granting a motion to enforce against an Arizona county a settlement agreement reached during mediation, in an action alleging both federal and state law causes of action. The plaintiffs asserted that a mediator hired by the County settled the plaintiffs' claims (and those of several other plaintiffs arising out of the same circumstances) and confirmed the settlement in an e-mail. The district court held an evidentiary hearing at which the directing county manager (authorized by resolution to resolve the claims) testified that he had authority to settle the claims, had authorized the mediator to communicate the settlement offer, was aware the mediator had communicated the offer, and believed a binding settlement was entered into. The district court granted the motion.
The 9th Circuit affirmed. It rejected the county's argument that the manager's testimony and the e-mails were privileged under Arizona's mediation privilege. Under the Federal Rules of Evidence, federal common law governs claims of privilege, but state law goerns privilege regarding a claim or defense governed by state law. Since the same evidence related to the federal and the state claims asserted in the action, state law did not bind the federal court on privilege. Because the county stated it was not contending that federal common law created a mediation privilege, the court declined to rule on whether such a privilege exists.
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