                          NOT FOR FULL-TEXT PUBLICATION
                                File Name: 09a0089n.06
                                Filed: February 3, 2009

                                            No. 08-3809

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


A & H MANAGEMENT SERVICES, INC.

                      Plaintiff-Appellee,
                                                    ON APPEAL FROM THE
v.                                                  UNITED STATES DISTRICT
                                                    COURT FOR THE NORTHERN
CHAFFLOSE CORPORATION,                              DISTRICT OF OHIO

                  Defendant-Appellant.
________________________________________/

BEFORE:        SUHRHEINRICH, GRIFFIN and KETHLEDGE; Circuit Judges.

       SUHRHEINRICH, Circuit Judge.              In this diversity action, Defendant Chafflose

Corporation (“Chafflose”) appeals from the district court’s order granting Plaintiff A&H

Management Services, Inc.’s (“A & H”) motion to compel specific performance of a settlement

agreement. Chafflose argues that the district court improperly considered mediation counsel’s

testimony and other email evidence in determining that the parties reached an oral settlement

agreement at mediation because those items were privileged under Ohio’s Uniform Mediation Act,

OHIO REV . CODE ANN . §§ 2710.01-2710.10 (West 2005) (“Mediation Act”). Chafflose also argues

that the attorney representing Chafflose did not have authority to bind Chafflose to any agreement

and that an email sent by that attorney to the American Arbitration Association (“AAA”) was

protected by the attorney-client privilege under OHIO REV . CODE ANN . § 2317.02(A) (West 2005).

       The record in this case fully supports the district court’s holding that an oral settlement
agreement was reached between the parties. Chafflose waived any privileges in the testimony and

other email evidence because Koji Sasaya, principal representative for Chafflose, filed an affidavit

in the district court explaining his understanding of the mediation. See OHIO REV . CODE ANN . §

2710.04(B) (West 2005) (stating that 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 [the Mediation Act]”). We further agree with the district court’s finding that

Chafflose’s counsel had apparent authority to bind Chafflose to the agreement. See Ohio State Bar

Assn v. Martin, 886 N.E.2d 827, 834 (Ohio 2008). Finally, the email sent to the AAA conveyed

Sasaya’s request that the parties “conclude the settlement and all related details prior to September

1.” It was not protected by the attorney-client privilege because it was not intended to be

confidential. See State v. Shipley, 641 N.E.2d 822, 825 (Ohio Ct. App. 1994) (“The attorney-client

privilege applies to communications made by clients to their attorney with the intent that the

communications remain confidential.”). Therefore, the district court did not abuse its discretion in

considering the email to the AAA.

       In sum, we AFFIRM the judgment of the district court for the reasons stated in its opinion

dated June 16, 2008.




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