Paige v. New Haven Unified School District et al

Filing 60

ORDER FINDING VIOLATION OF ADR LOCAL RULES AND COURT ORDER. Signed by Judge Laporte on 6/3/10. (edllc1, COURT STAFF) (Filed on 6/3/2010)

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For the Northern District of California

UNITED STATES DISTRICT COURT Northern District of California San Francisco Division
ANGELIQUE PAIGE, Plaintiffs, v. NEW HAVEN UNIFIED SCHOOL DISTRICT, et al., Defendants. _____________________________________/ No. C 09-0687 PJH ORDER FINDING VIOLATION OF ADR LOCAL RULES AND OF THE COURT'S ORDER OF APRIL 20, 2010

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The court is in receipt of defendant New Haven Unified School District's complaint that its carrier, Zurich North America, failed to have its representative appear by telephone at the Early Neutral Evaluation (ENE) session held on April 28, 2010. The court is also in receipt of the response submitted by counsel for the carrier. Finding these submissions, each of which is accompanied by a declaration of counsel, adequate to address the issue, the court declines to order further briefing or conduct further proceedings. The court finds that Zurich North America has violated both ADR Local Rule 5-10 and the court's order of April 20, 2010, permitting telephone attendance at the ENE session.

FACTUAL BACKGROUND An ENE was scheduled to occur in the captioned matter on April 28, 2010. In accordance with ADR Local Rule 5-10(d), Zurich North America, the primary insurance carrier for the New Haven Unified School District, requested that its claims representative, Deborah Kennedy, be

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For the Northern District of California

excused from appearing in person at the ENE session. By order dated April 20, 2010, the court granted the request, explicitly stating "Ms. Kennedy shall be available to participate by telephone during the ENE, pursuant to ADR Local Rule 5-10." The ENE session was held as scheduled. At the outset of the session, according to the uncontradicted declaration of the New Haven Unified School District's general counsel, the evaluator attempted several times to call Ms. Kennedy on a speaker phone so that she could participate in the proceedings, but Ms. Kennedy was not available. The ENE proceeded. Counsel for Zurich North America declares that he contacted Ms. Kennedy twice during the session, conveyed what had occurred to her, and obtained instructions about how to proceed. He concludes that Ms. Kennedy "meaningfully participated in the ENE." Although not expressly stated in the declaration, apparently counsel's conversations with Ms. Kennedy took place during breaks, as the ENE itself is conducted entirely in joint session unless the parties agree to proceed to settlement discussions, which did not occur in this case.

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ANALYSIS ADR Local Rule 5-10(f) provides as follows: "A person excused from appearing in person at an ENE session must be available to participate by telephone for the duration of the session or until excused by the neutral." Taking counsel for Zurich North America's recitation of the facts as true, Zurich North America still violated the rule and this court's order. Telephone participation means just that - participation in the session. Ms. Kennedy was required to be on the speaker phone listening to the proceedings and discussing the matter with the evaluator and the other participants throughout the proceedings. Separate conversations with her lawyer during breaks in the proceedings are completely inadequate. The reasons for this requirement are explicitly set forth in the ADR Local Rule 5-10(a): ". . . [T]he principal values of ENE include affording litigants opportunities to articulate directly to other parties and a neutral their positions and interests and to hear, first hand, both their opponent's version of the matters in dispute and a neutral assessment of the merits of the case and the relative strengths of each party's legal positions." Particularly in an ENE, in which no private caucuses are

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For the Northern District of California

permitted unless the matter proceeds to a settlement discussion, it is difficult to understand how separate conversations with counsel could be deemed to constitute participation. No settlement conversations were occurring, at least not yet. The point of the ENE process was for the parties themselves - and the claims representative - to hear for themselves, unfiltered by counsel, the presentations of each side and the questions and comments made by the neutral. Based on that personal participation, decisions could be made about the risks and benefits of proceeding with the litigation or perhaps engaging in settlement discussions. By failing to participate directly, in violation of the ADR local rules and this court's order, Zurich North America undermined a core element of the ENE process.

CONCLUSION Zurich North America and its counsel, Joseph Whitecavage, are ADMONISHED for their violation of the ADR local rules and this court's order of April 20, 2010. Should there be further ADR proceedings in this case, the court will not entertain a further request from Zurich North America for telephone participation and its representative shall appear in person.

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IT IS SO ORDERED.

June 3, 2010 Dated

By: Elizabeth D. Laporte United States Magistrate Judge

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