Pia v. Supernova Media et al

Filing 650

MEMORANDUM DECISION AND ORDER granting 304 Motion for Protective Order Regarding Ongoing Settlement Negotiations. Signed by Magistrate Judge Evelyn J. Furse on 2/13/13 (alt)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

JOSEPH G. PIA, an individual,

Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING MOTION FOR
PROTECTIVE ORDER (Docket No. 304)

v.

Civil No. 2:09-cv-00840-DN-EJF

SUPERNOVA MEDIA, a NEW York
corporation; JOYCELYN ENGLE a/k/a
JOYCELYN DIPALMA, an individual;
JOSEPH DIPALMA, an individual; and
JULIANNE MICHELLE, an individual, and
KELLY KENT, an individual, and does 1100,

Judge David Nuffer

Defendants.
_____________________________________

SUPERNOVA MEDIA, INC., a New York
corporation; JOYCLEYN ENGLE a/k/a
JOYCELYN DIPALMA, an individual;
JOSEPH DIPALMA, an individual, and
JULIANNE MICHELLE, an individual;

Counterclaimants,
v.

Magistrate Judge Evelyn J. Furse

JOSEPH G. PIA,

Counterclaim Defendant.
_____________________________________
SUPERNOVA MEDIA, INC., a New York
corporation; JOYCELYN ENGLE a/k/a
JOYCELYN DIPALMA, an individual;
JOSEPH DIPALMA, an individual, and
JULIANNE MICHELLE, an individual,

Third-Party Plaintiffs,

v.

BENNETT TUELLER JOHNSON &
DEERE, LLC, a Utah limited liability
company; and STUCKI STEELE PIA
ANDERSON & RENCHER, a Utah limited
liability company, and PIA ANDERSON
DORIUS REYNARD & MOSS, LLC, a Utah
limited liability company,

Third-Party Defendants.
_____________________________________
BENNETT TUELLER JOHNSON &
DEERE, LLC, a Utah limited liability
company,

Cross-Claim Plaintiff,

v.

JOSEPH G. PIA,

Cross-Claim Defendant.

Currently before the Court is Supernova Media, Inc., Joycelyn Engle, Joseph DiPalma,
and Julianne Michelle’s Motion for Protective Order Regarding Ongoing Settlement
Negotiations (Docket No. 304).1 After hearing oral arguments in an earlier hearing on December
27, 2012, the Court ordered supplemental briefing on whether Utah law should be applied
regarding settlement privilege and whether such a privilege applies under Reese v. Tingey Const.,
2008 UT 7, 177 P.3d 605 (2008). (Docket No. 635.) Having carefully considered the briefing
and heard oral argument, the Court GRANTS the Motion.
Both parties agree, pursuant to Federal Rule of Evidence 501, Utah law controls the
decision on this motion because this is a diversity case in the forum state of Utah. (Docket No.
638, at 1–4; Docket No. 640, at 1.) Both parties also agree a settlement negotiations privilege

1

District Judge Clark Waddoups referred this case to Magistrate Judge Paul M. Warner
under 28 U.S.C. section 636(b)(1)(A) on March 29, 2012. (Docket No. 355.) On April 10, 2012,
this case was reassigned to then-newly appointed District Judge David Nuffer, affirming the
order of reference to Magistrate Judge Warner. (Docket No. 372.) This referral was reassigned
to the undersigned Magistrate Judge on May 22, 2012. (Docket No. 484.)

does exist in Utah pursuant to Reese, 2008 UT 7, ¶ 8.2 (Docket No. 638, at 6; Docket No. 640, at
6.) The parties dispute whether the privilege applies to the negotiations at issue because of the
informality of negotiations, the details of which the parties dispute. The broad language used by
the court and the cases cited in Reese argue in favor of the application of the privilege in the
instant case.
The Utah Supreme Court has held that
mediation proceedings are designed to “encourage[ ] informal and confidential
exchange among the persons present to facilitate resolution of the dispute.” Utah
Code Ann. § 78–31b–8 (Supp. 2007) [now § 78B–6–208]. “Confidentiality of all
communications between the parties or among them and the mediator serves the
important public policy of promoting a broad discussion of potential resolutions
to the matters being mediated.” Wilmington Hospitality, L.L.C. v. New Castle
County, 788 A.2d 536, 541 (Del.Ch. 2001). This candid exchange of information
and ideas can be achieved only when the parties are assured that their
communications will be protected from postmediation disclosure.

Id. The court goes on to cite a Second Circuit opinion applying a settlement privilege to
“preargument conferences designed for the purpose of considering settlement or simplification of
issues.” Id. (citing Lake Utopia Paper Ltd. v. Connelly Containers, Inc.,608 F.2d 928, 930 (2d
Cir. 1979)). The court in a case related to this one ordered the parties to engage in settlement
discussions and meet subsequently with that court for further settlement discussions. The
negotiations at issue appear similar to these conferences. Under these facts, the Court will grant
a protective order to protect the negotiations that occurred from discovery.

2

The Court finds that Nature’s Sunshine Products, Inc. v. Sunrider Corp., No. 2:09-cv896 TC, 2011 WL 5881767, *3 (D. Utah Nov. 23, 2011), addresses the issue of whether an
agreement must be a signed writing in the context of mediation. It does not address the
discoverability of settlement negotiations. Therefore, it does not assist this Court in resolving
this matter.

ORDER
The Court GRANTS Supernova Media, Inc., Joycelyn Engle, Joseph DiPalma, and
Julianne Michelle’s Motion for Protective Order Regarding Ongoing Settlement Negotiations
(Docket No. 304).
DATED this 13th day of February, 2013.
BY THE COURT:

__________________________________
Evelyn J. Furse
United States Magistrate Judge