There is no "fruit of the poisonous tree" doctrine in the mediation privilege. For example, a party who learns about a witness during a mediation is not precluded by the privilege from subpoenaing that witness. This is a common exemption in mediation privilege statutes, and is also found in Uniform Rule of Evidence 408. See, e.g., Fla. Stat. Ann. Section 44.102 (1999) (general); Minn. Stat. Ann. Section 595.02 (1996) (general); Ohio Rev. Code Ann. Section 2317.023 (West 1996) (general); Wash. Rev. Code Section 5.60.070 (1993) (general).

§10005.__Waiver and preclusion of privilege

1.__Waiver.__A privilege under section 10004 may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and:

A.__In the case of the privilege of a mediator, it is expressly waived by the mediator; and

B.__In the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant.

2.__Prejudice; precluded.__A person that discloses or makes a representation about a mediation communication that prejudices another person in a proceeding is precluded from asserting a privilege under section 10004, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.

3.__Crime or criminal activity; precluded.__A person that intentionally uses a mediation to plan, attempt to commit or commit a crime or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege under section 10004.

REPORTER'S NOTES

1. Section 5(a) and (b). Waiver and preclusion.

Section 5 provides for waiver of privilege, and for a party, mediator, or nonparty participant to be precluded from asserting the privilege in situations in which mediation communications have been disclosed before the privilege has been asserted. Waiver must be express and either recorded through a writing or electronic record or made orally during specified types of proceedings. These rules further the principle of party autonomy