I just finished grading my Civil Procedure exams for this semester. I was sorely tempted to give my students the facts of Mutual of Enumclaw v. Cornhusker Casualty Insurance Co, 2008 WL 4330313 (E.D.Wash. 2008) as the basis for my exam. The question demanded an understanding that was just a little too much for me to expect of first semester law students. But my upper-level ADR students had best be prepared this coming semester…
The question prompted by this case (an otherwise unremarkable indemnification action between two insurance companies following the settlement of a claim arising out of a truck crash) is roughly this:
Should a federal court sitting in diversity apply a state mediation confidentiality statute (in this case, one modeled on the UMA) when its terms produce a different result than the Federal Rules of Evidence might suggest?
The court disposed of this question in a handful of sentences, answering, “Yes, the UMA is substantive.” Were the court my 1L student, I do not believe it would have received full credit for its response. The Erie doctrine is tricky, as most 1Ls will attest. And it’s not clear to me that the balancing involved necessarily tips so unwaveringly toward treating the UMA’s standards as “substantive” in the Erie sense of the word.
The court may have gotten this one right. I need to do some more thinking about it. But to my knowledge, this is the first time a federal court has spoken on this question. It will be interesting to see what, if anything, follows.
Michael Moffitt
