Now this is interesting. A plaintiff sues a product distributor in California claiming product-related injuries. She learns of a different plaintiff with a similar claim in New Jersey against the same distributor. She subpoenas the distributor’s New Jersey mediation statement and, guess what—they produced it. Yes, really.
So what happened? The distributor sought to claw-back the mediation statement claiming the mediation privilege protected it. And the court agreed, essentially blocking any waiver argument and chastising the plaintiff for even trying! Lakes v. Bath & Body Works LLC, 2018 WL 2318106 (E.D. Cal. May 22, 2018). You may read it here.
Crystal Lakes sued Bath & Body Works alleging that she suffered burns when one of BBW’s candles “flared” and “exploded.” Lakes learned of similar flaring litigation in New Jersey, and subpoenaed the “litigation records” from the NJ plaintiff’s counsel and BBW’s NJ counsel. Both lawyers produced BBW’s “brief submitted in the mediation or settlement proceedings.”
BBW then filed a motion to claw-back its mediation statement from Lakes’ clutched hands, and Lakes countered with a motion to compel. BBW argued that the mediation privilege required the statement’s return, but Lakes countered that BBW waived the privilege by producing it or, alternatively, that the court should impose a crime–fraud exception to the privilege.