In Re Prohibition Against Disclosing Ene Communications

OPINION RE WHETHER ADR LOCAL RULES PERMIT A PARTY TO DISCLOSE TO A SETTLEMENT JUDGE AN ASSESSMENT BY AN ENE EVALUATOR

I.

Introduction

A party to a civil case has delivered to the undersigned a letter of complaint alleging that opposing counsel violated the ADR Local Rules by disclosing to a settlement conference magistrate judge the assessment of the case that had been formed earlier in the pretrial period by an evaluator during an Early Neutral Evaluation conducted under this Court’s ADR program. The undersigned has issued a separate ORDER (disclosed only to the parties) that sets forth the disposition of the letter of complaint. The purpose of this OPINION is to apprise the public of how the undersigned interprets the pertinent provisions of the ADR Local Rules.

It is important to emphasize, at the outset, that the lawyer who disclosed the evaluator’s assessment of the case did not first seek permission to do so from opposing counsel and from the evaluator. Had such permission been sought and given, no violation of the ADR Local Rules would have occurred. Thus, the pertinent Rules create an opportunity for the participants in an ENE session to share the product of the…