MARY ROSE WILCOX, wife; EARL WILCOX, husband, Plaintiffs-Appellees,
JOSEPH M. ARPAIO; AVA ARPAIO; ANDREW P. THOMAS; ANNE THOMAS; LISA AUBUCHON; PETER R. PESTALOZZI; DAVID HENDERSHOTT; ANNA HENDERSHOTT, Defendants, and MARICOPA COUNTY, a governmental entity, Defendant-Appellant
Argued and Submitted, San Francisco, California:
March 11, 2014.
Appeal from the United States District Court for the District of Arizona. DC No. 2:11 cv-0473 NVW. Neil V. Wake, District Judge, Presiding.
Jeffrey S. Leonard (argued), James W. Armstrong, and Helen R. Holden, Sacks Tierney P.A., Scottsdale, Arizona, for Defendant-Appellant.
Colin F. Campbell (argued) and Kathleen Brody O'Meara, Osborn Maledon, P.A., Phoenix, Arizona, for Plaintiffs-Appellees.
Before: Jerome Farris, Stephen Reinhardt, and A. Wallace Tashima, Circuit Judges. Opinion by Judge Tashima.
TASHIMA, Circuit Judge:
We are asked to decide whether federal or state privilege law governs the admissibility of evidence of an alleged settlement reached during mediation of federal and state law claims. We conclude that federal privilege law governs, but that the County waived any available privilege; therefore, we affirm the district court's enforcement of the settlement agreement reached in mediation.
Plaintiffs Mary Rose Wilcox, a Maricopa County Supervisor, and Earl Wilcox, her husband, filed suit against Maricopa County (the " County" ) and certain present and former County officials. Plaintiffs alleged that these officials wrongfully investigated, prosecuted, and harassed Plaintiffs in retaliation for Plaintiffs' opposition to the actions of the County Sheriff, County Attorney, and their deputies. Plaintiffs pleaded federal claims under 42 U.S.C. § 1983 and supplemental state law claims.
Plaintiffs were not the only ones to file suit. Many other claimants, including other County Supervisors, pursued similar claims against the County. County advisors predicted that a hundred or more people might pursue such claims, potentially costing the County millions of dollars. County advisors also warned that these claims might create conflicts of interest for County Supervisors, who were both fiscal stewards for the County and actual or potential claimants against the County.
Concerned about the propriety, cost, and pace of litigation, the County adopted a resolution directing County Manager David Smith to establish an alternative dispute resolution program to resolve these claims. The resolution " directed and authorized [Smith] to take all actions necessary to . . . adjudicate the claims included in the alternative dispute resolution process," including by " entering into binding arbitration/mediation agreements with claimants" and " entering into contracts as needed." Smith, in turn, appointed mediator Christopher Skelly, a retired judge, to help resolve these claims. Through Judge Skelly, Smith settled multiple claims.
Plaintiffs assert that their claims were among those that were settled. They alleged that the County agreed to a $975,000 settlement, and filed a motion to enforce the alleged settlement. In support of their motion to enforce, Plaintiffs submitted an e-mail from Judge Skelly to Plaintiffs' counsel, dated April 9, 2012, stating that Skelly wrote to confirm a settlement in the amount of $975,000. Plaintiffs also submitted e-mails from Judge Skelly to counsel for two other claimants, also dated April 9, 2012. These e-mails were identical to Skelly's e-mail to Plaintiffs' counsel in every material respect (except for the identity of counsel and claimants, and the respective settlement amounts), except one: The e-mail to Plaintiffs' counsel included the sentence " This settlement is subject to any further approvals deemed necessary by the parties." ...