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Pinkham v. Coca-Cola Refreshments USA, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

August 13, 2018

MATTHEW S. PINKHAM, Plaintiff,
v.
COCA-COLA REFRESHMENTS USA, INC., CCBCC, INC., CCBCC OPERATIONS, LLC, Defendants.

          ORDER ON DISCOVERY DISPUTE

          Tim A. Baker United States Magistrate Judge

         I. Introduction

         At 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.

         II. Discussion

         Pinkham 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' statements.

         The 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.

         Indiana's 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:

(A) Confidentiality.
(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 mediator.
(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.
(B) Admissibility.
(1) Mediation shall be regarded as settlement negotiations governed by Indiana ...

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