Mediation Confidentiality Rules v. Freedom of Information Act: Which Prevails – Confidentiality or Disclosure?

Which will prevail?

By: Donald L. Swanson

“It is not established whether Local Rule 84.9 [on mediation confidentiality] would resolve the FOIA question because local rules do not clearly fit within a recognized FOIA exemption.”

Judicial Watch, Inc. v. U.S. Dept. of Justice, 813 F.3d 380 (D.C. Cir. 2016).

This quote comes at the end of a lengthy opinion dealing with multiple issues.  And it almost seems like a throw-away line.

But it’s an unfortunate line, causing uncertainty and confusion in the mediation world.

–Is the Court actually suggesting that mediation documents can be obtained under Freedom of Information Act [“FOIA”], despite local court rules requiring mediation confidentiality?

–Apparently so.

The local mediation rule in the Judicial Watch case provides as follows:


(1) The Court hereby prohibits the mediator, all counsel and parties and any other persons attending the mediation from disclosing any written or oral communications made in connection with or during any mediation session.

Rule 84.9(a)(1), of the Rules of U.S. District Court for District of Columbia.

The Judicial Watch Facts

First Phase

The House Committee on Oversight and Government Reform subpoenas documents relating to the “Fast and Furious” operation conducted by the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Attorney General Eric Holder refuses to produce certain documents on grounds of executive privilege.

So, the House Committee sues in District Court to enforce its subpoena.  Judge Jackson, of the District Court, refers the case to mediation.

Next Phase

Judicial Watch makes FOIA request for “records of the settlement discussions themselves.”

The Department refuses to release documents because of “court-imposed non-disclosure requirements.”

So, Judicial Watch sues the Department in District Court—in a separate case–to obtain the documents.  A different Judge sides with the Department, because disclosure of mediation documents is prohibited by Local Rule 84.9.

Third Phase

Judicial Watch appeals to the Circuit Court of Appeals, which remands the case so Judge Jackson, who referred the case to mediation, can provide clarification.

Fourth Phase

On remand, Judge Jackson clarifies that mediation-related orders in the case contain the following specifications:

–“The [mediation] memoranda should not be provided to opposing counsel and should not be filed through ECF.”

–“These memos . . . will not be shared and are for the Court’s eyes only.”

 Current Status

As of September 2, 2016, the District Court case remains open and unresolved, awaiting the scheduling of a Status Conference.

Explicit Confidentiality Order v. Local Confidentiality Rule

The Court of Appeals, in Judicial Watch, declares that a U.S. District Court can shield information from disclosure under the FOIA by an explicit sealing order.

However, the question raised by the Court of Appeals quotation above is whether mediation information can be obtained under the FIOA, when the District Court’s mediation order:

–is made under the Court’s local rule requiring mediation confidentiality; but

–fails to contain an explicit reference to mediation confidentiality.

The answer to this question, according to the Court of Appeals, remains a mystery.

Oddly enough, according to the Court of Appeals, a district court’s mediation referral can prevent FOIA disclosure by explicitly adopting confidentiality requirements of its own mediation rules.  But a failure to include such explicit reference leaves FOIA disclosure issues in the realm of mystery.

Editorial Comments:

So . . . are we really to believe that mediation confidentiality, under the FOIA, depends on whether the U.S. District Court’s mediation referral makes explicit reference to confidentiality?

–Surely, a U.S. District Court’s mediation referral automatically includes the confidentiality requirements of its own local mediation rule.  Right?  That is, undoubtedly, what the referring judge intended.  Right?

And is the Court of Appeals in Judicial Watch going to parse the “not be provided to opposing counsel” and “not be filed through ECF” and “for the Court’s eyes only” language of the mediation orders to determine if such words are sufficiently-explicit to preserve confidentiality?

This entire exercise is unfortunate!

The mystery and uncertainty created by the Circuit’s quotation above are unnecessary.  The matter should have been resolved, I suggest, by declaring that all District Court mediation orders automatically incorporate the Court’s own local rules on mediation confidentiality.

–After all, the Rule 84.9(a)(1) at issue in Judicial Watch begins with these court-order words: “The Court hereby prohibits . . . “




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