Discovery Immunity For Draft Expert Reports Lacks Clarity

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...

Stay ahead of the curve

In the legal profession, information is the key to success. You have to know what’s happening with clients, competitors, practice areas, and industries. Law360 provides the intelligence you need to remain an expert and beat the competition.


  • Access to case data within articles (numbers, filings, courts, nature of suit, and more.)
  • Access to attached documents such as briefs, petitions, complaints, decisions, motions, etc.
  • Create custom alerts for specific article and case topics and so much more!

TRY LAW360 FREE FOR SEVEN DAYS

Hello! I'm Law360's automated support bot.

How can I help you today?

For example, you can type:
  • I forgot my password
  • I took a free trial but didn't get a verification email
  • How do I sign up for a newsletter?
Ask a question!