EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, August 13, 2014

If It's Not Boeing: Western District of Washington Finds ADR Evidence Not Inadmissible Under Rule 408

Federal Rule of Evidence 408(a) reads as follows:

(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:  

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and  

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

But when exactly is there a "claim," triggering the protections of Rule 408(a)? That was the question addressed by the United States District Court for the Western District of Washington in its recent opinion in Alexander v. Boeing Co., 2014 WL 3900574 (W.D.Wash 2014).

In Alexander, Jane Alexander

worked at Boeing for about seventeen years, until Boeing fired her...Ms. Alexander suffers from chronic migraine headaches, which she contends constitute a disability. She claims not only that Boeing failed to reasonably accommodate her disability, but that it fired her after misleading her about whether she could continue to take medical leave. She sued initially in King County Superior Court,  invoking the Washington Law Against Discrimination and the Washington Family Leave Act. After Boeing removed the case to [federal] court, she added a claim invoking the federal Family and Medical Leave Act.

Before trial, Alexander filed a motion in limine, seeking to preclude Boeing from presenting any evidence related to Boeing's ADR process pursuant to Rule 408(a). In response, the court noted that

In determining whether Rule 408 applies, the Ninth Circuit has found that circumstances surrounding the communications, including both the timing of the offer and the existence of a disputed claim, are relevant to determine whether the offer was made in the compromise or settlement of a dispute....The Ninth Circuit has found that a severance plan offered at the time an employee is terminated in exchange for a release of all potential claims is not barred by Rule 408, but compensation offered to a previously terminated employee that is contingent upon the release of the employee's discrimination claim is barred by Rule 408.

Applying this standard, the court concluded

that under the circumstances presented to the court, Rule 408 does not apply to Boeing's internal ADR process that occurred between May and June 2013...where plaintiff had not yet filed a discrimination charge3 or lawsuit. See Josephs v. Pac. Bell, 443 F.3d 1050, 1064 (9th Cir.2006) ("Because the purpose of Rule 408 is to encourage the compromise and settlement of existing disputes, and the grievance proceeding did not concern Josephs' not-yet-filed discrimination claim, the district court did not abuse its discretion when it admitted the statements made by PacBell employees.").



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