In August, The Legal Intelligencer reported a federal court opinion in which the defendant law firm in a legal malpractice suit in state court requested the deposition of the chief mediator of the United States Court of Appeals as part of its defense. (See McKissock & Hoffman P.C. v. Waldron , Aug. 4).
The clerk of court denied the firm’s request, and the court held that the clerk’s denial was exempt from review under the Administrative Procedure Act. The court’s decision, however, did not address the other basis for the clerk’s decision, i.e., that allowing the mediator to testify about mediation communications in a legal malpractice case would be a breach of mediation confidentiality under federal regulations. (Statutes and court opinions often use “confidentiality” and “privilege” interchangeably, when “privilege” is what is generally intended.)
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