Recent Developments in Dispute Resolution 6/17/97

Carman v. McDonnell Douglas (8th Cir, Jun 11, 1997)

     Employee sued employer in federal district court claiming
     his termination violated the ADEA, ERISA, and a state
     statute.  The district court denied the employee's
     discovery request on the ground that certain documents
     were protected by an ombudsman privilege, and later
     granted summary judgment for the employer.  The 8th
     Circuit reversed, holding there is no evidentiary
     privilege under Federal Rule of Evidence 501 for an
     ombudsman's notes and documents.  The employer's
     ombudsman was a corporate vice-president outside the
     chain of command whose job was to investigate and mediate
     workplace disputes.  The ombudsman promised strict
     confidentiality to all employees, and was bound by the
     Code of Ethics of the Corporate Ombudsman Association,
     which requires confidentiality.  The court's reasoning:
     (1) Employer presented no evidence, and did not argue,
     that the ombudsman method is more successful at resolving
     disputes than other forms of ADR, or that its ombudsman
     is especially successful; (2) Most advantages of the
     ombudsman method would not be lost without a privilege,
     and ombudsmen can still promise to keep employee
     communications confidential from management; (3)
     Employees will feel comfortable airing disputes with the
     ombudsman, and the prospect of later civil discovery will
     not be a deterrent; (4) Failure to recognize a privilege
     will not disrupt relations between management and the
     ombudsman's office.  [Two federal district courts have
     recognized an ombudsman privilege.  Kietzy v. McDonnell
     Douglas, 133 FRD 570 (ED Mo, 1991) (in the 8th Cir); Roy
     v. United Technologies, Civil No. H-89-680 (JAC) (D.
     Conn, May 29, 1990).]

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           Recent Developments in Dispute Resolution
       Willamette University Center for Dispute Resolution
       Willamette University College of Law, Salem, Oregon
       Ross Runkel, Editor         Richard Birke, Director
       rrunkel@willamette.edu        rbirke@willamette.edu
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