Re: Polgar's Latest Smokescreen

They are admissible, but can't be used to prove certain things.


A ground-breaking 2003 decision by the 6th Circuit created a new
?settlement privilege? that protects settlement communications from
discovery.

Only in the 6th circuit, and then it's usually only when the communications
are used for specific purposes.

In Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc.,1 the 6th
Circuit found that the settlement privilege promotes the public policy
underlying Rule 408: preserving the secrecy of settlement communications
promotes settlements, which lessens the burden on the judicial system.

I forget what the privilege applies to, but I had to redact a discovery
request against someone relating to this when I moved to compel because of
this rule, which is how I found out about it.


Goodyear Tire is a remarkable case. It stands as the only federal
appellate court decision to recognize the settlement privilege.

Not the only one. The Third has precedent on it too.

It also represents the rare occasion of a federal appellate court
exercising its power to create a new privilege pursuant to Federal Rule of
Evidence 501. Rule 501 authorizes federal courts to determine new
privileges by examining ?common law principles ? in light of reason and
experience.?

Cute.


The 6th Circuit?s decision, however, stands in stark contrast against
the majority of federal district courts that refuse to acknowledge the
settlement privilege. According to these district courts, the only
federal rule to address settlement materials, Rule 408, is a rule about
admissibility and not discoverability.

Correct.


These courts also reason that settlement communications are necessarily
discoverable ? indeed, Rule 408 allows their use at trial for purposes
other than proving the liability for or invalidity of the claim or its
amount.

As I said.


Competing Standards

While the majority of federal district courts do not recognize the
settlement privilege, some district courts apply a stricter standard,
requiring a ?particularized showing? in determining whether to allow
discovery of settlement communications.

Right.

This higher standard is applied out of deference to the policy of promoting
settlements underlying Rule 408. A frequently cited case is Bottaro v.
Hatton Associates2 where the Eastern District of New York required a
?particularized showing? of the likelihood that disclosure of settlement
communications would lead to admissible evidence.
http://www2.mnbar.org/benchandbar/2005/nov05/protesting_settlement.htm

At the state level there is something of a trend to prohibit use of
settlement negotiations for any purpose, particularly if the negotiations
took place during a mediation proceeding.

I'm well aware of this rule.


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