United States District Court, S.D. Indiana, Indianapolis Division
MATTHEW S. PINKHAM, Plaintiff,
COCA-COLA REFRESHMENTS USA, INC., CCBCC, INC., CCBCC OPERATIONS, LLC, Defendants.
ORDER ON DISCOVERY DISPUTE
Baker United States Magistrate Judge
issue is whether Plaintiff Matthew Pinkham waived the work
product privilege regarding videos of witness interviews when
he showed portions of the videos at a settlement mediation.
Without a doubt, Pinkham waived any privilege regarding the
specific clips shown and must produce them. The more
interesting issue is whether the waiver extends to the full
videos of the witness interviews. The Court held a telephonic
status conference regarding this and other disputes on June
28, 2018. The Court resolved the other disputes, but took
this issue under advisement and permitted the parties to
submit letter briefs. Having heard the arguments and read the
parties' submissions, the Court finds that the waiver
does not extend to the full videos of the witness interviews.
brought personal injury claims in state court against
Defendants Coca-Cola Refreshments USA, Inc., CCBCC, Inc., and
CCBCC Operations, LLC, (collectively “Coca-Cola”)
and against James Imhausen, a Coca-Cola employee and Indiana
citizen. Pinkham's claims arise from a vehicle collision
between Pinkham and Imhausen that occurred roughly three
years ago. Pinkham settled his claim against Imhausen, and
Coca-Cola later removed the action to this Court based on
diversity jurisdiction. However, prior to removal, the
parties held a settlement mediation, during which the parties
presented opening statements in a joint session. During his
opening statement, Pinkham's counsel showed clips of
videos of four witness statements. Coca-Cola now wants
Pinkham to produce the full videos of the witnesses'
parties agree that the witness statement videos are work
product, but dispute whether work product protection has been
waived. Plaintiff argues that he did not waive the protection
when he showed portions of the videos because the mediation
was governed by the Indiana Alternative Dispute Resolution
Rules, which the parties agreed to and are part of
Indiana's civil procedure rules. Coca-Cola responds that
the ADR rules do not prohibit discovery of the witness
statements. Coca-Cola seeks to extend the alleged waiver to
the full videos under Federal Rule of Evidence 502(a).
Pinkham responds that Coca-Cola benefited from his limited
disclosure because Coca-Cola had not investigated for itself
and that Indiana's explicit policy encouraging settlement
weighs against disclosure.
ADR Rule 2.11 provides protections for mediations, but its
text does not create a discovery privilege for facts
discussed at the mediation. Rule 2.11 states:
(1) Mediation sessions shall be confidential and closed to
all persons other than the parties of record, their legal
representatives, and persons invited or permitted by the
(2) The confidentiality of mediation may not be waived.
(3) A mediator shall not be subject to process requiring the
disclosure of any matter occurring during the mediation
except in a separate matter as required by law.
(4) This Rule shall not prohibit the disclosure of
information authorized or required by law.
(1) Mediation shall be regarded as settlement negotiations
governed by Indiana ...