*1 Before the Court is Plaintiffs Citadel Pacific Ltd., Citadel Food Group Hawaii LLC, and Citadel Windbreak LLC's (collectively, Citadel) Motion to Compel, filed on October 25, 2022 (Motion). See ECF No. 25. Defendant Hawaiian Host LLC (Hawaiian Host) filed its Opposition on November 16, 2022. See ECF No. 30. Citadel filed its Reply on November 30, 2022. See ECF No. 33. The Court finds the Motion suitable for disposition without a hearing pursuant to Rule 7.1(c) of the Local Rules of Practice of the United States District Court for the District of Hawaii. After careful consideration of the record in this action and the relevant legal authority, the Court DENIES the Motion and ORDERS Hawaiian Host to produce a complete privilege log as detailed below.

At this early stage in the litigation, the factual information before the Court is limited. The Court recites these background facts based on the information currently before it and cautions the parties that the Court's recitation shall not be considered a finding or factual determination for any purpose.

While the parties were involved in an ongoing commercial arbitration, the parties entered into an agreement to participate in private mediation. See ECF No. 25-1 at 3-4. According to Citadel's Complaint, the parties entered into a settlement agreement during mediation in October 2021. See ECF No. 1. Hawaiian Host did not agree that the parties had reached a settlement as alleged. The parties proceeded with the commercial arbitration, and, in March 2022, the arbitrator issued a final award in favor of Hawaiian Host. See Hawaiian Host, Inc. v. Citadel Pacific Ltd., et al., 1:22-cv-00077JMS-RT, Order Granting Petitioner's Motion to Confirm ECF No. 1-3, and Denying Respondents’ Counter-Motion to Vacate, ECF No. 16, Arbitration Award, ECF No. 86 at 23-28.

Several months later, Citadel filed this action alleging breach of the purported settlement agreement entered into during mediation. See ECF No. 1, filed on June 17, 2022.

Citadel served three sets of written discovery on Hawaiian Host: Plaintiffs’ First Request for Answers to Interrogatories; Plaintiffs’ First Request for Admissions; and Plaintiffs’ First Request for the Production of Documents (collectively, Discovery Requests). See ECF Nos. 25-3, 25-4, 25-5. In relevant part, the Discovery Requests ask Hawaiian Host to provide information and documents related to the parties’ conduct during the mediation in October 2021. See id.

In response to the Discovery Requests, Hawaiian Host objected to all of the Discovery Requests and did not provide any substantive answers, admissions, or documents. See ECF Nos. 25-6, 25-7, 25-8. Although Hawaiian Host objected to providing discovery for several reasons, the only objections at issue in the present Motion are the objections based on the mediation privilege under Hawaii law.[1] Hawaiian Host produced a Mediation Privilege Log to Citadel on September 19, 2022. See ECF No. 25-12.

*2 In the present Motion, Citadel contends that Hawaiian Host's objections to providing discovery based on the mediation privilege should be overruled and Hawaiian Host must be compelled to provide substantive discovery responses. See ECF No. 25-1.

Federal Rule of Civil Procedure 26(b) provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). In determining whether the discovery is “proportional to the needs of the case,” the court should consider “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id.

“[I]n a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” Fed. R. Evid. 501. In this diversity action, Hawaii substantive law applies to Citadel's claim for breach of contract. Accordingly, the Court looks to Hawaii law to determine whether a mediation privilege applies to the discovery at issue. See In re California Pub. Utilities Comm'n, 892 F.2d 778, 781 (9th Cir. 1989) (“In diversity actions, questions of privilege are controlled by state law.”).

Under Hawaii law, “a mediation communication ... is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded.” Haw. Rev. Stat. § 658H-4.[2] The statute broadly defines a “mediation communication” as “a statement, whether oral, in a record, verbal, or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.” Haw. Rev. Stat. § 658H–2. Mediation is defined as “a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.” Id.

Hawaii's statute codifying the mediation privilege is based on the Uniform Mediation Act, which has been adopted in several other states. As another court has recognized in considering the mediation privilege under the Uniform Mediation Act, “the mediation-communication privilege allows a participant to refuse to disclose and to prevent another from disclosing particular communications.” Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 71 A.3d 888, 896 (N.J. 2013) (citing Nat'l Conference of Comm'rs on Unif. State Laws, Uniform Mediation Act § 4, comment 4 (2003), available at http://www.uniformlaws.org/shared/docs/mediation/uma_ final_03.pdf).

Here, the parties agree that Hawaii's mediation privilege applies in this case but disagree regarding its application to the discovery at issue. See ECF Nos. 25-1, 30. Specifically, Citadel argues that (1) the mediation privilege does not apply to communications evidencing the parties’ settlement; (2) the mediation privilege does not apply to communications after October 22, 2021, when the mediator purportedly declared an impasse; (3) Hawaiian Host is precluded from asserting the mediation privilege because of its position in this litigation; and (4) Hawaiian Host has waived the privilege by failing to provide a complete privilege log. The Court addresses each of these arguments below.

1. The Court DENIES Citadel's Request to Compel Hawaiian Host to Produce Mediation Communications Related to the Parties’ Purported Settlement

*3 First, Citadel argues the mediation privilege does not apply to mediation communications that evidence the parties’ purported settlement. See ECF No. 25-1 at 8, 16-20; ECF No. 33 at 11-16. The mediation privilege does not apply to “a mediation communication that is ... [i]n an agreement evidenced by a record signed by all parties to the agreement.” Haw. Rev. Stat. § 658-H(6)(a)(1). As noted by the drafters of the Uniform Mediation Act, this exception “permits such an agreement to be introduced in a subsequent court proceeding convened to determine whether the terms of that settlement agreement had been breached.” Nat'l Conference of Comm'rs on Unif. State Laws, Uniform Mediation Act § 6(a)(1), comment 2. Although Hawaii courts have not addressed this exception to the mediation privilege, other courts applying this same language have found that this exception applies to a document where “the parties reduced to writing the terms of the agreement and affixed their signatures to the document at the conclusion of the mediation.” Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 71 A.3d 888, 898 (N.J. 2013) (emphasis added); see also Mathurin v. Mathurin, 2019 WL 149702, at *1 (N.J. Super. Ct. App. Div. Jan. 9, 2019) (holding that the exception did not apply to “a memorandum of understanding [ ] prepared and signed only by the mediator”); Miller v. Basic Rsch., LLC, 2013 WL 1194721, at *1 (D. Utah Mar. 22, 2013) (applying the exception to “a term sheet with five numbered sections describing terms of the settlement” signed by the parties at the close of mediation) (emphasis added).

Here, Citadel contends that the parties reached a settlement, and that the settlement is reflected in four separate mediation communications sent by the mediator and counsel over the course of several days. See ECF No. 25-1 at 8, 19-20. Citadel asks the Court to find that these four documents are “an agreement evidenced by a record signed by all parties to the agreement” for purposes of finding an exception under Hawaii's mediation privilege. See ECF No. 25-1 at 16-17 (quoting Haw. Rev. Stat. § 658-H(6)(a)(1)). Essentially, Citadel seeks to have the Court determine that these communications identified by Citadel comprise an enforceable agreement and that as an enforceable agreement, the documents are excepted from the mediation privilege.

The Court declines to make any finding regarding whether the documents identified by Citadel constitute an agreement because such a finding is not necessary for resolving the present Motion. To the extent Citadel is asking the Court to compel Hawaiian Host to produce the same documents that it alleges evidence the parties’ settlement, that request is denied as moot because those documents are already in Citadel's possession. To the extent Citadel is asking the Court to find that these documents are exempt from the mediation privilege for purposes of admissibility, the Court declines to do so because admissibility is a separate consideration from discoverability. To the extent Citadel is asking the Court to compel discovery of additional mediation communications based on the purported settlement, that request is denied because the exception at issue only applies to “an agreement evidenced by a record signed by all parties,” and does not apply to other mediation communications. See Haw. Rev. Stat. § 658H-6(a)(1).[3]

The cases cited by Citadel do not support a finding that additional mediation communications are exempt from Hawaii's mediation privilege. Rather, the cases cited by Citadel involve evidence that that the court may consider when enforcing a settlement brokered without a mediator or enforcing a settlement after the parties made affirmative representations to the court that they had reached a settlement. See ECF No. 25-1 at 18 (citing Dharia v. Marriott Hotel Servs., Inc., 2019 WL 2713237, at *6 (D. Haw. June 28, 2019) (finding an enforceable settlement agreement based, in part, on the mediator's proposal and parties’ multiple joint status reports to the court affirmatively stating that they had reached a settlement); Edwards v. Trade Pub. Ltd., 2013 WL 1296277, at *3 (D. Haw. Mar. 27, 2013) (finding an enforceable agreement based on the parties’ direct exchange of emails without the involvement of any mediator). The cases cited by Citadel are not persuasive here because they fail to consider the application of Hawaii's mediation privilege and the facts of those cases demanded a different result.

*4 To be clear, the Court does not make any finding regarding Citadel's central claim in this litigation for breach of the purported settlement. Whether there was a meeting of the minds for purposes of forming an enforceable contract is not at issue before the Court in this Motion. The Court DENIES Citadel's request to compel discovery based on this exception to the mediation privilege.

2. The Court DENIES Citadel's Request to Compel Hawaiian Host to Produce Material After October 22, 2021

Second, Citadel contends that no mediation privilege applies after October 22, 2021, because the mediator declared an impasse on that day. See ECF No. 25-1 at 9-10; ECF No. 33 at 6, 9-10. As an initial matter, the Court notes that the definition of “mediation communication” is not limited by the duration of the mediation. Rather, as noted above, the definition of “mediation communication” includes not only statements made “during” a mediation, but also statements “made for purposes of ... continuing[ ] or reconvening a mediation.” Haw. Rev. Stat. § 658H-2 (emphasis added). Additionally, a “mediation” is defined as “a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.” Id.

Based on the Mediation Privilege Log provided by Defendant, it appears that the mediator communicated with the parties through at least October 28, 2021. See ECF No. 25-12 at 4. It appears that the mediator continued to facilitate discussions between the parties to assist them in reaching a voluntary agreement regarding their dispute through at least October 28, 2021. See id. Citadel's characterization of all communication after October 22, 2021, as statements related to “the settlement,” does not remove them from the protection of the mediation privilege. Because the mediator continued to facilitate the parties’ discussions, the Court finds that the mediation as defined under Section 658H-2 did not conclude and the mediation privilege also applies to mediation communications through October 28, 2021. Accordingly, the Court DENIES Citadel's request to compel discovery of mediation communications after October 22, 2021.

3. The Court DENIES Citadel's Request to Compel Hawaiian Host to Produce Discovery Based on Preclusion Under Section 658H-5(b)

Third, Citadel argues that Hawaiian Host is precluded from asserting the mediation privilege because Hawaiian Host made representations about the mediation in its Answer to the Complaint in this action and Citadel will be prejudiced without the opportunity to respond to those representations. See ECF No. 25-1 at 9, 23-26; ECF No. 33 at 17-19. Under Hawaii's mediation privilege statute, “[a] person who discloses or makes a representation about a mediation communication that prejudices another person in a proceeding is precluded from asserting [the mediation] privilege, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.” Haw. Rev. Stat. § 658H-5(b). Although not entirely clear in the Motion, it appears that Citadel argues that it is prejudiced by Hawaiian Host's representations in its Answer about rescission of its acceptance of the mediator's proposal and by Hawaiian Host's representations that any acceptance was conditioned on Citadel's timely and unconditional acceptance. See ECF No. 25-1 at 9, 23-24.

*5 As to the issue of recission, the Court rejects Citadel's argument that it is prejudiced by Hawaiian Host's statements regarding rescission in its Answer. See ECF No. 25-1 at 24. Citadel's Complaint expressly states that Hawaiian Host “purported to rescind its acceptance, which Citadel and the Mediator disputed.” ECF No. 1 ¶ 17. Although Hawaiian Host admits this allegation in its Answer, it is disingenuous of Citadel to suggest that Hawaiian Host raised the issue of rescission or that Citadel is now prejudiced by Hawaiian Host admitting an allegation in Citadel's Complaint.

As to the issue of Hawaiian Host's acceptance, in response to the allegation in the Complaint that Hawaiian Host accepted the mediator's proposal, Hawaiian Host states in its Answer that “[t]o the extent that Hawaiian Host accepted the Mediator's Proposal in writing on Saturday, October 23, 2021, such acceptance was conditioned on Citadel timely and unconditionally accepting the Mediator's Proposal.” ECF No. 11 ¶ 14. Citadel argues in its Motion that it “must be afforded an opportunity to rebut this contention.” ECF No. 25-1 at 23. As noted above, Hawaiian Host is only precluded from asserting the mediation privilege if Hawaiian Host's representation regarding a mediation communication “prejudices another person in a proceeding.” Haw. Rev. Stat. § 658H-5(b). The Court finds that Citadel has failed to show that it has been prejudiced by this statement in Hawaiian Host's Answer. In contrast to the case cited by Citadel, Hawaiian Host has consistently asserted the mediation privilege and has not made repeated representations to the Court regarding the parties’ conduct during the mediation in support of a dispositive motion. See ECF No. 25-1 at 23 (citing Reading Int'l, Inc. v. Malulani Grp., Ltd., 40 F. Supp. 3d 1312, at 1326 n.10 (D. Haw. 2014), rev'd on other grounds, 694 F. App'x 571 (9th Cir. 2017) (wherein the district court held in a footnote that Hawaii's mediation privilege did not apply, but even if it did, Plaintiff put statements made during the mediation at issue during the summary judgment hearing, which would preclude it from asserting the privilege). Citadel has failed to show that Hawaiian Host has engaged in conduct that is inconsistent with the assertion of the mediation privilege. Further, Citadel has not demonstrated that it is prejudiced at this stage in the litigation by a statement in Hawaiian Host's Answer regarding acceptance of any proposal from the mediator.

Without argument, Citadel cites to another subsection of Hawaii's mediation privilege law, Section 658H-6(b), regarding the discoverability of this information. See ECF No. 25-1 at 23. This subsection requires the Court to examine disputed evidence in camera and determine whether the need for the evidence “substantially outweighs the interest in protecting confidentiality.” Haw. Rev. Stat. § 658H-8-6(b).[4] Assuming that Citadel is alternatively contending that this subsection applies, the Court finds that Citadel has failed to show that its need for discovery substantially outweighs the interest in protecting the confidentiality of communications made by the parties during private mediation.

4. The Court DENIES Citadel's Request to Find that Hawaiian Host has Waived Any Privilege and ORDERS Hawaiian Host to Provide a Complete Privilege Log for All Documents Withheld on the Basis of Any Privilege

*6 Finally, Citadel argues that the Mediation Privilege Log produced by Hawaiian Host was deficient and that Hawaiian Host's failure to produce a complete privilege log requires the Court to find that Hawaiian Host has waived any privilege. See ECF No. 25-1 at 9, 26-28; ECF No. 33 at 16-17. The Court agrees that Hawaiian Host's Mediation Privilege Log is deficient but declines to find waiver.

When a party withholds otherwise discoverable information claiming that the information is privileged, the party must produce a privilege log that describes the nature of the information in a manner that enables other parties to assess the applicability of the privilege or protection. See Fed. R. Civ. P. 26(b)(5). The Ninth Circuit has rejected a “per se waiver rule that deems a privilege waived if a privilege log is not produced” within the time to respond to the discovery requests. See Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. Of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005). Instead, the Court must make a “case-by-case determination” considering the privilege at issue, the timeliness of any objection, the volume of documents at issue, and any other circumstances of the litigation. See id.

Here, the Mediation Privilege Log produced by Hawaiian Host only lists communications that involve the mediator. See ECF No. 30 at 5. However, it is evident from Hawaiian Host's discovery responses and its Opposition that Hawaiian Host considers all mediation communications privileged including internal communications. None of those internal communications are included in the Meditation Privilege Log. While many of those communications may include communications with counsel, the fact that certain communications may be subject to multiple privileges does not excuse Hawaiian Host's discovery obligations. See ECF No. 30 at 24-25. According to the Motion, the responsive time frame for the Discovery Requests was limited to October 21 to 28, 2021. See ECF No. 25-1 at 7 (“The responsive time frame was limited to October 21 to 28, 2021.”); ECF No. 33 at 7 (“Citadel's discovery requests seek documents predominantly from an 8-day period in October 2021.”). Based on this limitation, the Court rejects Hawaiian Host's argument that producing a complete privilege would be overly burdensome.[5]

To the extent Hawaiian Host is withholding any documents responsive to the Discovery Requests dated from October 21, 2021 to October 28, 2021, on the basis of any privilege, Hawaiian Host shall produce a privilege log in compliance with Federal Rule of Civil Procedure 26(b)(5). At a minimum, the privilege log must contain the following information for each responsive document withheld: the date the document was created; the author; each recipient; the type of document; the subject matter of the document; the basis for withholding the document; and the purpose of the document demonstrating the basis for the claim of privilege. See Fed. R. Civ. P. 26(b)(5) (requiring the withholding party to “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim”); see also Kim v. Crocs, Inc., 2017 WL 10379587, at *4 (D. Haw. Nov. 28, 2017) (discussing the requirements for a privilege log).

5. The Court DENIES the Parties’ Request for Sanctions Related to this Motion

*7 Under Rule 37, if a motion to compel is denied, the Court must award reasonable expenses to the party opposing the motion unless “the motion was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(C). Here, although the Court has denied the relief requested in Citadel's Motion, the Court finds that an award of expenses to Hawaiian Host for this opposing the Motion would be unjust based on Hawaiian Host's failure to provide a complete privilege log.

The Court DENIES Citadel's Motion to Compel. Hawaiian Host shall provide a complete privilege log as detailed above no later than January 4, 2023.[6]

IT IS SO ORDERED.

DATED AT HONOLULU, HAWAII, DECEMBER 5, 2022.