Filed: Jul. 22, 2016
Latest Update: Jul. 22, 2016
Summary: ORDER JAMES D. WHITTEMORE , District Judge . 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 de
Summary: ORDER JAMES D. WHITTEMORE , District Judge . 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 dem..
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ORDER
JAMES D. WHITTEMORE, District Judge.
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 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).
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 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.
