Maricopa County Waived Argument That Evidence Admitted To Show Settlement Should Be Privileged Under Federal Law
87 Yard Punt . . .
In Wilcox v. Arpaio, No. 12-16418 (9th Cir. Feb. 2, 2014) (Tashima, Farris, Reinhardt), the Ninth Circuit avoids having to “determine whether a mediation privilege should be recognized under federal common law and, if so, the scope of such a privilege.” The panel punted on the issue when it determined that Maripoca County, which did not want a settlement agreement enforced, had failed to argue that evidence of settlement should be privileged under federal law, by instead staking the erroneous position that state law governed.
Here are the points about the “privilege” that we can glean from the opinion:
- Federal common law generally governs a claim of privilege. Federal Rule of Evidence 501.
- In a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. Id.
- The admissibility of evidence of settlement reached during mediation of federal and state law claims is governed by federal privilege law.
How did these rules play out here?
Plaintiffs brought claims against Maricopa County and certain officials alleging wrongful investigation, prosecution, harassment, and retaliation -- federal claims pleaded under 42 U.S.C. section 1983, and supplemental state law claims. Therefore, the admissibility of evidence that plaintiffs reached a settlement with defendants will be decided under federal law. Under federal law, there is no statutory mediation privilege – leaving the murky status of the privilege to be decided under federal common law. But here, the Court of Appeal did not have to decide the interesting question.
Because Maricopa County staked the (incorrect) position that the privileged status of the evidence had to be decided under Arizona state law, it forfeited the argument that the evidence was privileged under federal law.
And so the district court did not err by admitting evidence of settlement and enforcing the settlement. Affirmed.
“applying state contract law to determine in mediation the parties reached an enforceable settlement of plaintiffs’ federal and state law claims, but applying federal privilege law to determine what evidence from mediation was admissible in support of that determination.”