Gomez v. Enterprise Rent-A-Car Company of Los Angeles, LLC

Filing 44

ORDER on 40 Joint Motion to Determine Discovery Dispute: Deposition Questions of Jose Gomez. As provided herein, Fed.R.Ev. 408 does not provide a basis for Plaintiff to refuse to answer questions regarding the eleven emails exchanged with Defendant. Signed by Magistrate Judge Mitchell D. Dembin on 12/14/11. (Dembin, Mitchell)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSE GOMEZ,

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CASE NO. 10cv2373 L (MDD)
Plaintiff,

ORDER ON JOINT MOTION FOR
DETERMINATION OF DISCOVERY
DISPUTE RE: DEPOSITION
QUESTIONS OF PLAINTIFF

v.
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ENTERPRISE RENT-A-CAR COMPANY
OF LOS ANGELES, LLC,

[DOC. NO. 40]

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Defendant.
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Before the Court is the joint motion of the parties, filed December 9, 2011, for the Court to

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rule on a discovery dispute that arise during the deposition of Plaintiff. (Doc. No. 40). The dispute

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involves eleven electronic mails exchanged between Plaintiff and employees of Defendant shortly

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after Plaintiff left Defendant’s employ. Counsel for Plaintiff refused to allow Plaintiff to answer

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when Plaintiff was asked to authenticate the emails. Plaintiff argues that the emails are privileged

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settlement discussions under Fed.R.Ev. 408. Defendant argues that there is no settlement

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discussion privilege and that Rule 408 is a rule governing admissibility and not discovery.

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By its terms, Rule 408 governs only the admissibility of certain evidence that derives from
settlement discussions. Rule 408(a) provides, in part:

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Evidence of the following is not admissible on behalf of any party,

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when offered to prove liability for, invalidity of, or amount of a

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10cv2373 L (MDD)

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claim that was disputed as to validity or amount, or to impeach

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through a prior inconsistent statement or contradiction:

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(1) furnishing or offering or promising to furnish - or

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accepting or offering or promising to accept - a

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valuable consideration in compromising or attempting

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to compromise the claim; and,

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(2) conduct or statements made in compromise

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negotiations regarding the claim . . . .

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As with most rules, exceptions are provided which do allow for the admissibility of such evidence

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if not offered for a purpose prohibited by subsection (a). See Rule 408(b). Evidence of otherwise

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prohibited settlement discussions may be admitted, for example, to prove a witness’ bias or

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prejudice or to negate a contention of undue delay. Id.

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Rule 408, then, only implicates discovery to the extent that discovery must be relevant -

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relevance being defined as “reasonably calculated to lead to the discovery of admissible evidence.”

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Fed.R.Civ.P. 26(b)(1). Inasmuch as Rule 408 does not provide an absolute bar to the admissibility

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of evidence derived from settlement discussions, this Court finds that it does not provide for a

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“settlement negotiation privilege” as suggested by Plaintiff.

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Nevertheless, courts have struggled with issues of discovery of settlement negotiations. In

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Goodyear Tire & Rubber Company v. Chiles Power Supply, Inc., 332 F.3d 976 (6th Cir. 2003), the

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court of appeals recognized a settlement negotiation privilege, at least as against third parties

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stating:

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Parties are unlikely to propose the types of compromises that most

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effectively lead to settlement unless they are confident that their

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proposed solutions cannot be used on cross examination, under the

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ruse of “impeachment evidence,” by some future third party.

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Id. at 980 (emphasis added). Similarly, Cook v. Yellow Freight System, Inc., 132 F.R.D. 548, 554

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(E.D.Cal. 1990), relied upon by Plaintiff, declined to order defendant to produce settlement

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10cv2373 L (MDD)

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communications between the defendant and a third party.
More recently, on the other hand, discovery was allowed into communications with third

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parties which communications were characterized as settlement negotiations. In Phoenix

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Solutions, Inc. v. Wells Fargo Bank, N.A., 254 F.R.D. 568, 583-584 (N.D. Cal. 2008), the court

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declined to find that Rule 408 provided a discovery bar.

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In the instant case, the communications at issue were between this Plaintiff and this

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Defendant. Moreover, Defendant has the communications. Thus far, Plaintiff has been asked only

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to authenticate the communications. This Court finds that Rule 408 does not provide a general bar

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prohibiting Defendant from questioning Plaintiff regarding the communications between them.

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Nor does the Court find any basis to apply any other “settlement negotiation privilege” in the

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context of this case. Whether there are questions that may be asked that justify a refusal to answer

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on some grounds is not before the Court today. And, whether the answers given to the questions

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are admissible will be a question for another day before another judge.

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Accordingly, Plaintiff must answer questions posed regarding the eleven emails unless the

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answer calls for otherwise privileged information.

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IT IS SO ORDERED:

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DATED: December 14, 2011

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Hon. Mitchell D. Dembin
U.S. Magistrate Judge

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