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Erica Bristol is an attorney
and commercial mediator
specializing in intellectual
property disputes. Her office is
located in Encino.
NEWS RULINGS VERDICTS
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Top Women Lawyers
Friday, May 10, 2013
Litigation
Attorney General charges JPMorgan Chase
with flooding state courts with specious
lawsuits
In a stinging complaint filed Thursday in state
court in Los Angeles, Calif. Attorney General
Kamala Harris accused the nation's largest bank of
robo-signing tens of thousands of lawsuits against
100,000 credit card borrowers in the state.
Government
Many smell political posturing in
Maldonado's call for realignment repeal
Gov. Jerry Brown's landmark criminal justice
legislation known as realignment is facing heavy
criticism from a potential electoral foe. But to
some, former Lt. Gov. Abel Maldonado's plan is
simply a move to score political points.
Labor/Employment
Discrimination case nets $7.5 million
settlement
A group of black retail workers agreed to settle a
racial discrimination lawsuit against their former
employer, Wet Seal Inc., for $7.5 million in a
proposed agreement filed late Wednesday.
Government
Local governments ramp up pressure on LA
regarding Ontario's airport
In a new wrinkle to local governments' ongoing
pressure on Los Angeles regarding the fate of
Ontario's airport, Ontario, San Bernardino County
and other municipalities this week asked L.A. to
mediate a dispute over expansion of LAX.
Corporate
Dealmakers
A roundup of recent mergers and acquisitions and
financing activity and the lawyers involved.
Litigation
Appellate court may keep suit against
mortgage-modification lawyer alive
An allegedly one-sided fee-shifting provision in a
retainer agreement may keep a potential class
action against a mortgage loan modification
attorney in court.
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Mediation privilege: understand
state, federal distinctions
Imagine the following
scenario: A plaintiff in a patent
infringement action settles in
mediation with one of the
defendants. A nonsettling
defendant wants to know how
the settling parties calculated the
reasonable royalty to determine
whether the same calculation
should be applied. The plaintiff is
ordered to produce settlement negotiation documents and communications made
during the mediation relating to the royalty calculation. Six months after all defendants
have settled, the plaintiff sues her attorney in state court for patent malpractice,
claiming the attorney failed to give her competent advice concerning the royalty
calculation in the mediated settlement. The plaintiff seeks the same settlement
negotiation documents and communications that the nonsettling defendant obtained,
but the materials cannot be introduced, due to that state's mediation privilege. Does
something sound wrong here? Strange as it sounds, the above scenario could actually
happen, due to the lack of a uniform application of mediation privilege among state
and federal courts.
To understand mediation privilege, it is necessary to explain the difference between
mediation "confidentiality" and "privilege." Mediation confidentiality refers to the
participants' confidentiality obligations to each other, while mediation privilege refers
to protection from compelled disclosure, which is applicable to litigants generally,
including those who did not participate in the mediation. Most states have adopted
some form of mediation privilege which protects documents and communications
made in preparation for or during mediation from compelled disclosure in litigation
and other proceedings. Such rules are typically found in a state's statutes or in a court's
local rules for alternative dispute resolution. Although some statutes contain exceptions
- such as fraud, enforcement of executed settlement agreements made in mediation,
and professional malpractice - in some states, such as California, the privilege is so
strong that communications between an attorney and his or her own client during
mediation are protected from compelled disclosure by the client in subsequent actions
and proceedings. In federal court, however, different evidentiary rules and privileges
apply, and the mediation privilege exists on a court-by-court basis.
Rules for mediation confidentiality exist within the federal court system. The
Alternative Dispute Resolution Act of 1998 established confidentiality in federal court
ADR proceedings. 28 U.S.C. Section 652(d) states, "Until such time as rules are adopted
under Chapter 131 of this title providing for the confidentiality of alternative dispute
resolution processes under this chapter, each district court shall, by local rule adopted
under Section 2071(a), provide for the confidentiality of the alternative dispute
resolution processes and to prohibit disclosure of confidential dispute resolution
communications." Congress has not adopted a "rule" under Chapter 131 for mediation
privilege, but most if not all federal district courts have established local rules
addressing confidentiality in alternative dispute resolution proceedings.
Unlike mediation confidentiality, there is no uniform mediation privilege in the
federal courts. Neither the U.S. Supreme Court nor any circuit court has adopted a
federal mediation privilege, and some circuit courts, such as the 4th and 9th Circuits,
have expressly declined to do so.
In Babasa v. LensCrafters, Inc., 498 F.3d 972 (2007), the 9th U.S. Circuit Court of
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Entertainment & Sports
Lawsuit over reggae legend's remixes may
get new life
Federal appellate judges on Thursday indicated
they were inclined to revive a previously dismissed
antitrust and copyright case involving remixes of
recordings by reggae legend Bob Marley.
Law Practice
Quinn Emanuel to open in Sydney, eyes
Hong Kong and Singapore
Los Angeles-based litigation powerhouse Quinn
Emanuel Urquhart & Sullivan LLP will venture
across the Pacific to open an office in Sydney next
month, the firm announced on Thursday.
Solo and Small Firms
Shernoff Bidart found its niche
Shernoff Bidart Echeverria Bentley LLP found its
calling in the 1970s at the cutting edge of
insurance contract law. Representing policy
holders, the firm has stayed true to its identity.
Law Practice
Allen Matkins adds land use partner, tax
associate
The firm snagged partner Fernando Villa from
Pircher, Nichols & Meeks and associate Scott M.
Dommes from professional services firm Ernst &
Young LLP.
Discipline
State Bar postpones vote on 'warning label'
proposal for lawyers facing discipline
charges
A State Bar committee decided on Thursday to
delay voting on a controversial proposal that
would put a red warning label on the webpage
profiles of any attorney in the state who faces
disciplinary charges.
Intellectual Property
Facebook, Timelines settle trademark
infringement suit
Menlo Park-based social networking company
Facebook Inc. has settled a trademark
infringement lawsuit filed by Chicago-based
Timelines Inc.
Righthaven loses copyright appeals in 9th
Circuit
A 9th Circuit U.S. Court of Appeals panel affirmed
the dismissal of copyright infringement suits filed
by Nevada-based holding company Righthaven
LLC against two bloggers.
Alternative Dispute Resolution
Ronald E. White
Attorneys say mediator Ronald E. White brings
flexibility to his mediations, enabling him to tackle
cases thought impossible to settle.
Appeals held that on an issue to be decided under federal law, state law on mediation
(including privilege) did not apply, and the court declined to adopt a federal mediation
privilege. In Facebook, Inc. v. Pacific Northwest Software, Inc., 640 F.3d 1034 (2011),
the court declined to adopt a federal mediation privilege, noted that federal privileges
are created by common law, and stated it was doubtful district courts could add to the
list of federal privileges by local rule. The court also called into question the existence of
a mediation privilege in those district courts that established such a privilege. In
Kimberly-Clark Worldwide v. First-Quality Baby Products, No. 2011-1157 (2011), the
Federal Circuit declined to recognize a federal mediation privilege.
In federal court ... the mediation privilege
exists on a court-by-court basis.
Some federal district courts - such as the Northern District of California - have
adopted a federal mediation privilege; some limit the scope of the privilege to the
bounds of the relevant district court's local ADR rules; and some have expressly rejected
the adoption of a mediation privilege altogether.
Still other district courts have ordered disclosure of documents and materials made in
connection with mediation, even when the court has recognized a mediation privilege.
The recognition of a federal mediation privilege appears to exist only within individual
district courts, and at least one circuit court has called into question the ability of
district courts to establish such a privilege.
The hallmark of mediation lies in the belief that communications and documents
made in preparation for or during mediation will remain confidential, facilitating
honest and open discussions and information exchanges without fear such
communications and documents will be used against a participant in litigation or other
proceedings. The inconsistent recognition and application of federal mediation privilege
may reduce candor and frankness due to concerns that discussions and materials may
be subject to disclosure.
The lack of a uniform federal mediation privilege may also lead to inconsistent
evidentiary rulings and create unpredictable outcomes for litigants and counsel,
especially for those who utilize mediation to resolve property disputes prior to litigation.
Litigants may engage in forum shopping in an effort to introduce documents and
communications made in mediation (or to ensure they cannot be introduced), based on
whether federal mediation privilege exists within a certain jurisdiction.
Until such time as a federal mediation privilege is uniformly adopted, attorneys and
their clients must be keenly aware of the inconsistencies in state and federal courts; the
existence (or nonexistence) of exceptions in the relevant jurisdiction; and the possibility
that documents and communications made in mediation may be subject to compelled
disclosure in some federal courts, regardless of the existence of a state mediation
privilege.
Some protection may be afforded by way of confidentiality agreements, protective
orders, and rules of discovery and evidence. But without a uniform mediation privilege
in the federal court system, protection from compelled disclosure is not guaranteed and
exists on a court-by-court basis. Jurisdictional differences concerning mediation
privilege must be taken into account when engaging in litigation in federal courts and
mediating disputes, to appropriately advise clients and avoid unanticipated outcomes.
Erica Bristol is an attorney and commercial mediator specializing in intellectual
property disputes. Her office is located in Encino.
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Entertainment & Sports
Universal ends "Fifty Shades" dispute with
adult film studio
A district judge granted Universal a permanent
injunction Thursday, ending a dispute over an
unauthorized pornographic adaptation of the
bestselling novel "Fifty Shades of Grey."
Labor/Employment
Judge sides with hedge fund manager during
jury deliberation
In an unusual move, a San Francisco Superior
Court judge Thursday issued a directed verdict
throwing out a $5.3 million claim brought against
a hedge fund manager by a former employee who
claimed to be a partner and co-owner of the
business.
Alternative Dispute Resolution
ADR Department closure: one door shuts,
another opens
By the end of this month, the ADR Department of
the Los Angeles County Superior Court will have
closed its doors, officially, in virtually every
courthouse in the county. By Floyd J. Siegal
Tax
Powerball lands in California, so what
happens if you win?
Curiously, California doesn't tax winners of its own
state lotteries, though federal tax certainly applies.
However, it does tax anyone in California who
wins the lottery from any other state. By Robert
Wood
Entertainment & Sports
Talent agency act survives suit, clarity
remains elusive
So where does the most recent leave the current
regulation of talent agents and personal
managers? By Neville Johnson and Eric
Mueller
Alternative Dispute Resolution
Mediation privilege: understand state,
federal distinctions
Unlike mediation confidentiality, there is no
uniform mediation privilege in the federal courts.
By Erica Bristol
Law Practice
Negotiate better: lessons from empirical
research
On the hunch that most busy lawyers don't spend
much time reading social science journals, I
thought I'd summarize some of the key points. By
Wayne Brazil
Judicial Profile
Dale S. Fischer
U.S. District Judge Central District of California
(Los Angeles)
Juvenile

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Peer courts suffer as budgets trimmed, but
supporters tout their value
Peer courts have been a staple in California courts
for decades, allowing the punishments for low-
level juvenile offenders to be decided by other
teenagers, but budget cutbacks are limiting the
reach of the programs.
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