On September 23, 2008, Stephen L. Kaplan, Esq., counsel for Respondent Jameson Thottam, filed a Petition for Review with the California Supreme Court in the matter of Estate of Thottam. Therein Mr. Kaplan presented the Court with two issues to consider:
ISSUE #1: Fair v. Bakhtiari, (2006) 40 Cal. 4th 189, 192 held that subdivision (b) of Evidence Code §1123 does not waive mediation confidentiality for purported settlement agreements created during mediation that are “simply a memorandum of terms for inclusion in a future agreement.” Does the same apply to subdivision (c) of Evidence Code §1123 so that purported written settlement agreements created during mediation are inadmissible at trial if it is unclear from the face of the document whether the document is a settlement agreement or “simply a memorandum of terms for inclusion in a future agreement”?
ISSUE #2: When the parties disagree whether a writing created during mediation is a settlement agreement, is mediation confidentiality waived under Evidence Code §1123(c) by signing a mediation agreement before the mediation commences that acknowledges that mediation is confidential “except as may be necessary to enforce any agreements resulting from the Meeting” and “shall be considered privileged and, as a settlement conference, non-admissible under the
California Evidence Code in any current or future litigation between us”? [1CT(Civ) 104].
We adressed the history of the Thottam case and the Court of Appeal’s decision underlying the Petition for review on September 15, 2008. For more information, please see: Recent Confidentiality Decisions … In a Nutshell.
We will be keeping a close eye on the filings in this case and will report back as the story develops.