I sued a company for breach of contract on a loan. The company is now insolvent. I just learned recently that officers of the company entered into mediation talks with a different creditor (apparently the company also owes the creditor money). I want to depose that creditor and find out more about the settlement talks and see if there are money paid that should be used to pay me. The creditor said there is a confidentiality agreement that prohibits him from talking to me. Is this true?
Lawsuit / Dispute Attorney
Interesting issue. There is a mediation and settlement discussion privilege in CA, and parties can agree to keep settlement agreements confidential.
However, facts that are otherwise known are not shielded from discovery simply because they're mentioned in mediation or in settlement talks.
Moreover, nothing in either privilege would across the board prohibit the creditor from speaking with you. They just don't want to be deposed -- looks like you may have to subpoena them for deposition.
The information/answer is not, nor is it intended to be, legal advice. Consult an attorney regarding your individual situation. This attorney is only licensed to practice law in California. Your question and this answer do not create an attorney-client relationship. Do not send/post any confidential information. For more information, visit: www.thesandiegolawfirm.com
4 lawyers agree
Lemon Law Attorney
General rule is that what is said in mediation stays in mediation. Depositions can be held in ongoing cases in certain cases even with non parties, if properly served, but, unless the company you are talking about is in BK you just continue on to get (hopefully) a judgment. If they are insolvent, they cannot afford an atty so, you are in the same boat apparently. Get the judgment and try to collect is my 2 cents.
2 lawyers agree
Personal Injury Lawyer
I concur with the advice you have received from Attorneys O'Brien and Kaufman.
The above is general legal and business analysis. It is not intended nor construed to be "legal advice" but rather it is analysis, and different lawyers may analyze this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I have been licensed to practice law in California since 1978. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.
1 lawyer agrees