Wilcox v. Maricopa County – 6/2/2014

June 4, 2014

Ninth Circuit Holds That Federal Privilege Law Governs the Admissibility of Evidence of an Alleged Settlement of Federal Claims Reached During Mediation of Those Claims.

Maricopa County Supervisor Mary Rose Wilcox, along with her husband, sued the Maricopa County Sheriff, County Attorney, and others for civil-rights violations in connection with their retaliatory investigation and criminal indictment of her.  The day before the County Attorney was disbarred for related conduct, the Wilcoxes and the County agreed to settle their claims, which included federal claims and related state-law claims.  The settlement was reached with the assistance of a retired judge, who was acting as a mediator.  The County later repudiated the settlement, and the Wilcoxes moved to enforce the agreement.  After an evidentiary hearing, the district court concluded that there was an enforceable settlement agreement.

On appeal, the County argued, among other things, that the district court considered evidence that should have been precluded by Arizona’s mediation privilege. The Ninth Circuit disagreed and affirmed the district court.  The Ninth Circuit held that federal privilege law governs a situation like this when a complaint includes, and the same evidence governs, federal- and state-law claims.  The court also concluded that the County had waived any argument—by failing to raise it—that the contested evidence should have been precluded under federal privilege law.

Disclosure:  Osborn Maledon represented plaintiffs Mary Rose and Earl Wilcox during proceedings before the district court and the Ninth Circuit.