United States District Court, D. Oregon, Portland Division
Honorable Paul Papak United States Magistrate Judge.
legal malpractice action, Plaintiff Andrea Dauber claims that
Defendant Micah Fargey, a member of the Oregon State Bar,
breached his duty of care as an attorney when he represented
Plaintiff in an employment discrimination action (the
Underlying Action) against Vesta Hospitality, LLC (Vesta),
Plaintiffs former employer.
parties dispute to what extent, if any, Defendant is entitled
to disclosure of materials relating to the mediation of the
Underlying Action when Plaintiff was represented by her new
counsel. I conclude that Plaintiff must disclose the
following materials for the reasons stated below.
alleges that after Defendant filed the Underlying Action
against Vesta, Defendant participated in a settlement
conference with Vesta on Plaintiffs behalf. Plaintiff alleges
that Defendant "did not prepare a settlement memo for
the arbitrator, did not prepare arguments or materials from
which to advance Plaintiffs settlement position and took no
substantive action in preparation for the mediation.
Plaintiff was unable to resolve the case through mediation
because Defendant did not prepare for the mediation."
Compl. ¶ 20.
September 2016, Plaintiff terminated Defendant's
representation and retained attorney David Shannon. On
December 9, 2016, Vesta filed a motion for summary judgment
in the Underlying Action. Three days later. Plaintiff,
represented by Shannon, settled with Vesta during mediation.
Plaintiff alleges the settlement "resulted from
Plaintiff having competently prepared-including conducting
discovery, submitting materials and preparing-for the second
mediation." Compl. ¶ 24.
parties dispute the extent to which Plaintiff is required to
disclose documents or other communications related to
Shannon's representation of Plaintiff during the second
mediation with Vesta. Under Oregon law, "Mediation
communications are confidential and may not be disclosed to
any other person." Or. Rev. Stat. § 36.220(1)(a);
cf. Or. Rev. Stat. § 36, 220(1)(b) (parties to
a mediation may agree that all or part of their mediation
communications are not confidential). "To the extent
that a mediation agreement or communication is confidential
under [Or. Rev. Stat, § 36.220], it is 'not
admissible as evidence in any subsequent adjudicatory
proceeding, and may not be disclosed by the parties or the
mediator in any subsequent adjudicatory
proceeding.'" Alfieri v. Solomon, 358 Or.
383, 387, 365 P.3d 99, 102 (2015) (quoting Or. Rev. Stat.
find that any documents Shannon may have drafted or submitted
to the mediator as part of the mediation process are
confidential and therefore not subject to discovery. Oregon
defines "mediation communications" to include
"[a]ll memoranda, work products, documents and other
materials, including any draft mediation agreement, that are
prepared for or submitted in the course of or in connection
with a mediation or by a mediator, a mediation program or a
party to, or any other person present at, mediation
proceedings." Or. Rev. Stat. §36.110(7)(b).
Plaintiff must disclose any relevant documents or
communications that occurred after the close of mediation.
The Oregon Supreme Court has held that "communications
that occur after a settlement agreement is signed are not
'mediation communication' ... and are neither
prohibited from disclosure .. . nor inadmissible .., A
communication is thus 'in the course of or in connection
with' a mediation only if it is made during and at a
mediation proceeding or occurs outside of a proceeding but
relates to the substance of the dispute being mediated and is
made before a resolution is reached or the process is
otherwise terminated." Alfieri, 358 Or. at 397,
365 P.3d atl07-08.
documents, emails, or other communications between Plaintiff
and Shannon concerning the mediation are subject to discovery
and must be disclosed to Defendant, even if the documents or
other communications occurred during mediation. The Oregon
Supreme Court has addressed this issue, holding that
"[p]rivate communications between a mediating party and
his or her attorney outside of mediation proceedings, ... are
not 'mediation communications' as defined in the
statute, even if integrally related to a mediation."
Alfieri, 358 Or. at 404, 365 P.3d at 111; see
also id., 358 Or. at 406, 365 P.3d at 112 ("Private
discussions between a mediating party and his or her attorney
that occur outside mediation proceedings, whether before or
after those proceedings, are not 'mediation
communications' .., even if they do relate to what
transpires in the mediation.").
that Plaintiff must disclose the settlement agreement itself
to Defendant. Plaintiff states that the settlement agreement
"provides that the parties to that agreement 'May
disclose the terms of this agreement to their spouse,
attorney, accountant, tax advisor, board members, officers,
directors, the Internal Revenue Service, or as otherwise
required by law . , ..'" Todd Decl. ¶ 4
(emphasis added), ECF No. 26. By this order, I require
disclosure of the settlement agreement.
is ordered to disclose to Defendant all documents, emails or