Dauber v. Fargey
Filing
36
ORDER: Plaintiff is Ordered to disclose to Defendant all documents, e-mails or other communications as required by this Order. Signed on 4/26/18 by Magistrate Judge Paul Papak. (gm)
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
ANDREA DAUBER,
No. 3:17-cv-1457-PK
Plaintiff,
v.
ORDER
MICAH FARGEY,
Defendant.
PAPAK, Magistrate Judge:
In this 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.
The 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.
Page -1- ORDER
BACKGROUND
Plaintiff 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
tlu·ough mediation because Defendant did not prepare for the mediation." Comp!. 'if 20.
In 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. Tlu·ee days later, Plaintiff, represented by Shannon, settled with Vesta during
mediation. Plaintiff alleges the settlement "resulted from Plaintiff having competently prepared-including conducting discove1y, submitting materials and preparing--for the second mediation."
Comp!. 'if 24.
DISCUSSION
The 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(l)(a); cf Or. Rev. Stat.§ 36.220(1)(b)
(pmiies 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 pmiies or the mediator in any subsequent
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adjudicatory proceeding."' Alfieri v. Solomon, 358 Or. 383, 387, 365 P.3d 99, 102 (2015)
(quoting Or. Rev. Stat.§ 36.222(1)).
Here, I 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 discove1y. 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).
However, Plaintiff must disclose any relevant documents or communications that
occtmed after the close of mediation. The Oregon Supreme Court has held that
"communications that occur after a settlement agreement is signed are not 'mediation
commm1ications' ... 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 othe1wise terminated." Alfieri, 358 Or. at 397, 365 P.3d at107-08.
Furthermore, documents, emails, or other communications between Plaintiff and Shannon
concerning the mediation are subject to discove1y and must be disclosed to Defendant, even ifthe
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
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ORDER
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.").
I find 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
te1ms 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
Deel. if 4 (emphasis added), ECF No. 26. By this order, I require disclosure of the settlement
agreement.
CONCLUSION
Plaintiff is ordered to disclose to Defendant all documents, emails or other
communications as required by this Order.
Dated this 26th day of April, 2
Honorable Paul Papak
United States Magistrate Judge
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ORDER
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