James Gorman Insurance, Inc. et al v. Bankers Insurance Company et al

Filing 53

ORDER granting 43 Motion to Quash. Signed by Judge James D. Whittemore on 7/22/2016. (SMA) (Additional attachment(s) added on 7/22/2016: # 1 Order) (BES).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JAMES GORMAN INSURANCE, INC. and
JAMES M. GORMAN,
Plaintiffs,
v.

Case No: 8:16-cv-816-T-27AEP

BANKERS INSURANCE COMPANY,
ROBERT G. SOUTHEY and BRIAN J.
KESNECK,
Defendants.
___________________________________/
ORDER
BEFORE THE COURT is Non-Party John H. Dannecker’s Objection, Motion to Quash,
and/or Motion for Protective Order (Dkt. 43), Plaintiffs’ response (Dkt. 46), and Defendants’
response (Dkt. 50). Upon consideration, the Motion is GRANTED.
Defendants Robert G. Southey and Brian J. Kesneck served a subpoena duces tecum on John
H. Dannecker, the mediator who facilitated the settlement agreement that is the subject of this
action.1 The subpoena demands Dannecker’s appearance at a deposition scheduled for July 25, 2016
and requests that he produce “Any and all documents related to the mediation between James

1

In 2010, JGI and Bankers executed a Producer Agreement whereby Bankers was to compensate JGI for
soliciting and issuing surety bonds and collecting premiums on Bankers’ behalf. (Dkt. 1 ¶¶ 9-10). On April 24, 2015,
JGI sued Bankers in Massachusetts District Court. (Id. ¶ 11). Bankers sued Plaintiffs in the Middle District of Florida,
five days later. (Id. ¶ 12). The parties commenced arbitration in both cases and mediated on December 1, 2015, which
resulted in the execution of a written mediation settlement agreement. (Id. ¶¶ 13, 17; Dkt. 9-1).
Plaintiffs’ Complaint alleges claims for breach of the settlement agreement, breach of implied covenant of good
faith and fair dealing, tortious interference, declaratory judgment, and breach of oral contract against Bankers, and fraud
in the inducement and negligent misrepresentation against all defendants. (Dkt. 1). Bankers filed a breach of contract
counterclaim against JGI. (Dkt. 9).

1

Gorman Insurance, Inc., James M. Gorman, and Bankers Insurance Company, that occurred on
December 1, 2015” as well as “[a]ny and all correspondence shared with either James Gorman
Insurance, Inc., James M. Gorman, and Bankers Insurance Company.” (Dkt. 43-1).
Dannecker requests that the subpoena be quashed and/or a protective order be issued
shielding him from any discovery. Dannecker provides three grounds for his request: (1)
communications made during the mediation are confidential and privileged; (2) the subpoena and
the information it seeks is at odds with Federal Rule of Evidence 408; and (3) any testimony he may
give is irrelevant.2 Despite the fact that Defendants Southey and Kesneck served the subpoena, none
of the Defendants oppose the Motion and also request that the Court issue a protective order denying
either party the right to question or request production from Dannecker pertaining to the December
1, 2015 mediation.3 Plaintiffs contend that Dannecker may and should testify as to his recollection
of statements between the parties during the mediation.4
Federal Rule of Civil Procedure 45 provides that a court “must quash or modify a subpoena
that: . . . (iii) requires disclosure of privileged or other protected matter, if no exception or waiver
applies.” Fed. R. Civ. P. 45(d)(3)(A). Dannecker contends that communications made during the
mediation are confidential and privileged, without exception in this case, relying on Florida Statutes
section 44.405(1) and Local Rule 9.07(b).

2

The issue of whether communications made by Southey and Kesneck at the mediation are confidential and
privileged is also the subject of a motion to dismiss (Dkt. 12) and a motion for sanctions (Dkt. 17).
3

Defendants assert that they were “forced” to subpoena Dannecker, given Plaintiffs’ allegations about what was
said at the mediation, yet agree not to ask Dannecker questions about what transpired during mediation. (Dkt. 50 at 4).
The purpose of the subpoena is therefore unclear.
4

Plaintiffs have not served any discovery on the mediator. (Dkt. 46 at 1 n.1). And Plaintiffs’ counsel withdrew
on July 12, 2016. As a corporation, James Gorman Insurance, Inc. cannot proceed pro se.

2

Section 44.405(1) provides: “Except as provided in this section, all mediation
communications shall be confidential. A mediation participant shall not disclose a mediation
communication to a person other than another mediation participant or a participant’s counsel.” Fla.
Stat. § 44.405(1). “Mediation communication” is defined as “an oral or written statement, or
nonverbal conduct intended to make an assertion, by or to a mediation participant made during the
course of a mediation, or prior to mediation if made in furtherance of a mediation.” Fla. Stat. §
44.403(1). “Mediation participant” is defined as a “mediation party or a person who attends a
mediation in person or by telephone, videoconference, or other electronic means.” Fla. Stat. §
44.403(2).
By definition, the mediation privilege in § 44.405(1) protects disclosure of communications
that were made during mediation to others outside the mediation process.5 Because Plaintiffs and
Defendants were mediation participants it does not appear that the mediation privilege would be
applicable.6
Moreover, mediation communications are not confidential or privileged if they are “[o]ffered

5

Local Rule 9.07(b) provides:
All proceedings of the mediation conference, including statements made by any party, attorney, or
other participant, are privileged in all respects. The proceedings may not be reported, recorded, placed
into evidence, made known to the trial court or jury, or construed for any purpose as an admission
against interest. A party is not bound by anything said or done at the conference, unless a settlement
is reached.
This rule also seems to contemplate disclosure of mediation communication to non-participants. And, although “local
rules are valid and binding on the parties, their enforcement must be tempered with due consideration of the
circumstances.” Cohen v. Carnival Cruise Lines, Inc., 782 F.2d 923, 924 (11th Cir. 1986).
6

Cf. Bowdler v. State Farm Mut. Auto. Ins. Co., No. 2:13-CV-539-FTM-38, 2014 WL 2700672, at *2-3 (M.D.
Fla. June 13, 2014) (activity logs containing summaries and analyses of communications during the underlying mediation
fell outside the mediation privilege because Plaintiff his counsel participated in the mediation); MapleWood Partners,
L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 626 (S.D. Fla. 2013) (mediation privilege did not extend to plaintiff's
documents from a mediation with defendant in a previously litigated case); Altheim v. GEICO Gen. Ins. Co., No.
8:10-CV-156-T-24TBM, 2010 WL 5092721, at *1 (M.D. Fla. Dec. 8, 2010) (ordering communications designated as
mediation communications be produced).

3

for the limited purpose of establishing or refuting legally recognized grounds for voiding or
reforming a settlement agreement reached during a mediation.” Fla. Stat. § 44.405(4)(a)5. Under
Florida law, “fraudulent inducement renders a contract voidable.” Mazzoni Farms, Inc. v. E.I.
DuPont De Nemours & Co., 761 So. 2d 306, 313 (Fla. 2000).
Notwithstanding, the proponents of Dannecker’s deposition do not oppose the motion. And
given their position that Dannecker may not disclose anything that occurred at the mediation and that
they will not ask him questions about what transpired, they have not made a sufficient showing of
the need for the discovery. See Fed. R. Civ. P. 26(b)(1).
Accordingly, Non-Party John H. Dannecker’s Objection, Motion to Quash, and/or Motion
for Protective Order (Dkt. 43) is GRANTED. The Subpoena Duces Tecum (Dkt. 43-1) is quashed.
DONE AND ORDERED this 22nd day of July, 2016.

/s/ James D. Whittemore
JAMES D. WHITTEMORE
United States District Judge

Copies to: Counsel of Record

4