Discovery Immunity For Draft Expert Reports Lacks Clarity

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By Matthew Boxer, Michael Kaplan, and Jessica Terry (November 10, 2021, 5:43 PM EST) — To borrow from a popular travel destination slogan, what happens in mediation stays in mediation. Or does it?

The answer currently is maybe, as a Delaware bankruptcy judge presiding over the Chapter 11 bankruptcy case, In re: Boy Scouts of America and Delaware BSA LLC, considers whether certain documents fall within the scope of the mediation privilege.[1]

The fact that the court did not summarily rule that the documents sought were immune from discovery raises questions as to what other types of documents, once thought or presumed to be shielded from discovery, may need to be disclosed. Drafts of expert reports…

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