Mary Wilcox v. County of Maricopa, 2014 U.S. App. LEXIS 10151

Plaintiffs Mary Rose Wilcox and Earl Wilcox allege federal and state-law claims against Maricopa County and current/former officials.
County created an ADR program to resolve numerous related claims and appointed Judge Skelly to mediate; Smith authorized settlement actions.
Plaintiffs claim a $975,000 settlement was reached in mediation; emails on April 9, 2012 reflect an offer and acceptance, with a disputed 'further approvals' clause.
District court held Smith had authority to settle and that the 'further approvals' clause referred to § 11-626; it granted enforcement of the settlement.
County argued the contested evidence was protected by Arizona mediation privilege and should be inadmissible; County failed to raise federal privilege.
On appeal, the Ninth Circuit held federal privilege law governs admissibility for mixed federal/state claims and that the evidence falls within a mediation-privilege exception; the district court’s enforcement is affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Which privilege law governs admissibility of mediation evidence?	Wilcox argues federal privilege law applies to mixed federal/state claims.	Arpaio argues Arizona state privilege law applies because the dispute centers on state-law settlement issues.	Federal privilege law governs admissibility.
Is the April 9, 2012 email evidence privileged under Arizona mediation privilege?	Emails show a signed agreement; exception to privilege applies.	Emails are within mediation privilege and should be excluded.	Emails fall within the § 12-2238(D) exception and are admissible.
Did the district court err in admitting testimony about authority to settle?	Authority existed via Smith and Judge Skelly; credibility supported by County conduct.	Testimony should be privileged or unreliable to prove a settlement.	District court did not err; Smith had authority and testimony credible.
Was the settlement fully enforceable as a complete agreement?	Evidence shows a meeting of the minds and a binding offer/acceptance.	The agreement was incomplete without further approvals.	Enforcement of the settlement is proper; the sentence about further approvals referred to § 11-626 and was satisfied.

Donahoe v. Arpaio, 872 F. Supp. 2d 900 (D. Ariz. 2012) (district court decision enforcing settlement and addressing privilege)
Callie v. Near, 829 F.2d 888 (9th Cir. 1987) (evaluation of settlement formation when material facts are disputed)
Taylor v. State Farm Mut. Auto Ins. Co., 854 P.2d 1134 (Ariz. 1993) (Arizona law on when there is a binding settlement under mediation)
Firchau v. Barringer Crater Co., 344 P.2d 486 (Ariz. 1959) (determines existence of a settlement term under Arizona law)
Leo Eisenberg & Co. v. Payson, 785 P.2d 49 (Ariz. 1989) (Arizona judge-made interpretations of contracts and agency)
Religious Tech. Ctr. v. Wollersheim, 971 F.2d 364 (9th Cir. 1992) (context on mediation privileges and evidentiary rules)
Facebook, Inc. v. Pac. Nw. Software, Inc., 640 F.3d 1034 (9th Cir. 2011) (application of contract law to mediation outcomes; privilege considerations)
United States v. Chase, 340 F.3d 978 (9th Cir. 2003) (en banc discussion of privilege scope)
Zamani v. Carnes, 491 F.3d 990 (9th Cir. 2007) (principles on when state law applies in federal proceedings)
Maynard v. City of San Jose, 37 F.3d 1396 (9th Cir. 1994) (abuse of discretion standard in enforcing settlement agreement)