In re Estate of D.A. Osguthorpe

July 1, 2021

Utah Supreme Court

2021 UT 23 (Click for full text).

The Utah Supreme Court reversed the decision of the district court excluding the introduction of an affidavit as evidence for containing privileged mediation statements because the court unreasonably excluded the affidavit in its entirety, when it could have admitted a redacted version that omitted any statements considered privileged mediation communications.


Dr. Osguthorpe died leaving significant assets, and multiple versions of his will and trust documents resulted in years of litigation amongst his descendants. During probate proceedings, the probate court ordered the litigating parties to mediate, which resulted in a settlement agreement reached by the participants. However, certain potential beneficiaries that had objected to the probate petition were not notified nor included in the mediation process, and they objected to the settlement. One of the parties that participated in mediation had filed an affidavit in support of the motion to set aside the settlement agreement, and the court eventually vacated the settlement. A second attempt at mediation with all the involved parties thereafter failed, and more litigation ensued, including a separate tort action against certain parties for breach of fiduciary duties as personal representatives and trustees.

The probate and tort cases were eventually consolidated, and in preparation for trial on the tort issues, the maker of the previous probate affidavit filed a pretrial motion to now exclude that affidavit from trial on the tort action, as certain statements in that affidavit were being sought to be introduced for impeachment purposes by opposing parties. The district court excluded the affidavit–even a redacted version–on the grounds that it constituted a reference to the parties’ mediation agreement, and such evidence is excluded pursuant to the Rules of Evidence, as well as the Utah Uniform Mediation Act. That decision, among several others, was appealed. 


On direct appeal, the Utah Supreme Court, in addressing the decision to exclude the affidavit, held that the district court erred by excluding the entire affidavit. The Utah Uniform Mediation Act, at UCA § 78B-10-104, provides that “a mediation communication is privileged . . . and is not . . . admissible in evidence in a proceeding . . . .” The Act defines mediation communication as “a statement . . . 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.” The Court held that the affidavit itself was not made for any of these purposes, and to the extent that it reflected the substance of mediation communications, the parties seeking its introduction had proposed offering a redacted version that only revealed relevant statements they wanted to use. The district court’s exclusion of a redacted version of the affidavit was therefore unreasonable, and its decision was reversed.