Usherson v. Bandshell Artist Management

Background

The court had ordered the parties to participate in an in-person mediation by October 31, 2019. The mediation occurred on that date, but Plaintiff Arthur Usherson and his lawyer, Richard Liebowitz, did not appear in person. Two associates from Liebowitz’s firm attended instead. Usherson also spoke briefly by telephone.

Bandshell Artist Management moved for sanctions against Usherson and Liebowitz. Liebowitz said that, before the mediation, the mediator had permitted an associate to attend instead of Liebowitz and had permitted Usherson to participate by telephone. Liebowitz made those assertions at a court conference, in a sworn declaration, and in papers filed for Usherson. Defense counsel disputed the assertions and said the mediator would testify that no such permission had been given.

Confidentiality and Limited Disclosure

The court explained that communications made during or for the court’s mediation program are generally confidential because confidentiality encourages open discussion and protects the mediation process. But confidentiality has exceptions when there is a special need for the material, refusing access would cause unfairness, and the need for the evidence outweighs the interest in confidentiality. The court also noted that the mediation rules allow disclosure of communications with the mediator when the parties agree, when disclosure is legally required, or when the communications are relevant to a complaint about the mediator or the mediation program.

The court held that this dispute justified a narrow inquiry into communications between Liebowitz and the mediator. The inquiry was needed to determine whether Liebowitz complied with the court’s orders and whether his statements—some made under penalty of perjury—were truthful. The court limited the inquiry to whether and when the mediator gave permission for Liebowitz not to attend personally, for an associate to attend instead, and for Usherson to participate by telephone. It did not authorize inquiry into the parties’ substantive mediation discussions or settlement negotiations.

Public Access and Redactions

The court considered whether the sanctions-related filings and proceedings should remain sealed. It concluded that the strong presumption favoring public access to judicial documents and proceedings generally required public access, particularly because the motion asked the court to impose sanctions and concerned statements made to the court.

The court nevertheless ordered redactions for allegations about conduct during the mediation itself, the content of negotiations, and the identities of the mediator and court employees working in the mediation program. Public versions of the existing submissions were to be filed with those redactions, while unredacted versions would remain under seal.

Order

The court ordered the director of the court-annexed mediation program to provide this opinion to the mediator. The mediator was directed to submit a declaration by December 18, 2019, addressing only whether advance permission was given for the associate to attend instead of Liebowitz and for Usherson to participate by telephone. Future sanctions-related filings had to be public, limited to those issues, and omit or redact the names of the mediator and relevant court employees unless the court ordered otherwise. The court stated that it would decide after reviewing the declaration whether further proceedings were necessary to resolve the sanctions motion.

Judge Jesse M. Furman did not decide the sanctions motion in this opinion. The ruling addressed limited evidence, mediation confidentiality, sealing, and public access.