Edward M. Spiro and Christopher B. Harwood
When parties engage in private mediation, they frequently assume that their mediation-related submissions and communications are not discoverable in litigation. In fact, while courts generally cloak mediation with a fair degree of confidentiality, this protection is not absolute and courts have disagreed whether a party seeking discovery of materials relating to a confidential private mediation (as distinct from a court-sponsored mediation) must make a heightened showing of need.
Southern District Judge Jesse M. Furman recently addressed this issue in Accent Delight International Ltd. v. Sotheby’s, 2020 WL 7230728 (S.D.N.Y. Dec. 8, 2020). In Accent Delight, plaintiffs allege that Yves Bouvier, a non-party art dealer, defrauded them out of approximately $1 billion in connection with their purchase of world-class art that included Leonardo da Vinci’s Christ as Salvator Mundi. Plaintiffs claim that defendant Sotheby’s had a role in the scheme. Plaintiffs moved to compel Sotheby’s to produce materials relating to a separate, confidential private mediation between Sotheby’s and the original sellers of Christ as Salvator Mundi. Judge Furman denied the motion, holding that a heightened standard of need applied to plaintiffs’ motion to compel, which plaintiffs had failed to satisfy.
‘Accent Delight’
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