EvidenceProf Blog

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

Thursday, January 27, 2022

District of Maine Opinion in Whole Foods Litigation Reveals That Rule 408 is Not a Discovery Rule

Federal Rule of Evidence 408(a) provides that

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.

Like other rules of evidence, Rule 408 is a rule of (in)admissibility, not a rule of discovery, as is made clear by the recent opinion of the United States District Court for the District of Maine in Opio v. Whole Foods Market Group, Inc., 2022 WL 227114 (D. Maine 2022).

In Opio, the

Plaintiff ask[ed] the Court to order Defendant to produce the documents related to Defendant's settlement of a race discrimination case in 2016 (the prior case)....The prior case, initiated by one of Plaintiff's relatives, involved the store and supervisors involved in this case in which Plaintiff alleges race discrimination.

In granting the plaintiff's motion, the court held that

Although the Court understands the public policy encouraging settlement, see e.g., Rule 408 advisory committee's note to 1972 amendment (grounds for rule excluding evidence of settlement offers include the “promotion of the public policy favoring compromise and settlement of disputes”), the Court is not persuaded that the public policy requires a heightened level of scrutiny when settlement documents are requested in discovery. Federal Rule of Civil Procedure 26 governs the scope of discovery. The issue is whether the requested information is relevant to “any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). In some cases, such as in Barclay v. Gressit, No. 2:12-cv-156-JHR, 2013 WL 3819937 (D. Me. July 24, 2013), (concluding the settlement agreement in a related case was relevant and thus discoverable) cited by Plaintiff, settlement documents might be relevant. In other cases, the documents would not be relevant. If the documents are relevant, the policy concerns raised can be addressed through a protective order.

Because Plaintiff asserts a similar cause of action to the claim asserted in the prior case and because the prior case involved the same store and supervisors as this case, the non-monetary terms of the settlement are relevant to this matter. Settlement documents typically include the names of individuals (i.e., the releasors and releasees) who conceivably have information regarding a similar claim as Plaintiff's claim and other information (e.g., the scope of any confidentiality agreement, including who is bound by the agreement, remedial measures, if any, a defendant agreed to implement) that would be relevant to Plaintiff's claims. While the Court believes the non-monetary terms would be relevant to this case, the Court is not persuaded that the amount paid is relevant to the claims and defenses asserted in this case.

The Court, therefore, grants in part Plaintiff's motion. Defendant shall produce the settlement documents in the prior case, but Defendant may redact from the documents the amount paid in consideration of the settlement. Defendant may also designate the documents as confidential under the confidentiality order in this case.



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