Wu v. Pearson Education Inc.

Filing 136

MEMORANDUM AND ORDER: With respect to settlement-related discovery, Pearson shall produce within one week of the date of this order: 1. Any document reflecting punitive fees or penalties that Pearson has paid to resolve print overrun claims; 2. Any d ocument reflecting final settlement of claims concerning print overruns; 3. Documents sufficient to show the date on which any claim concerning a print overrun was initiated; and 4. Any specific document previously requested by plaintiff that may hav e been withheld because it was created in the context of settlement negotiations. These documents shall be produced, as appropriate, pursuant to the confidentiality order in place in this case. In all other respects, the plaintiff's application to compel production of settlement-related discovery is denied. (Signed by Magistrate Judge James C. Francis on 4/12/2012) Copies Mailed By Chambers. (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
NORBERT WU, Individually and on
:
Behalf Of All Similarly Situated
:
Persons,
:
:
:
Plaintiffs,
:
:
- against :
:
PEARSON EDUCATION INC.,
:
:
Defendant.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

(ECF)

09 Civ. 6557 (KBF) (JCF)

MEMORANDUM
AND ORDER

Counsel in this action previously presented to me a number of
discovery disputes.

At a pretrial conference on March 19, 2012,

they indicated that they were continuing to negotiate a possible
resolution, and I gave them a deadline for completing that process.
They now represent that they have resolved, or are on the verge of
resolving, all of their disagreements save one. (Undated Letter of
Kevin P. McCulloch received April 2, 2012 (“McCulloch Letter”);
Letter of David W. Marston Jr. dated April 6, 2012 (“Marston
Letter”); Undated Letter of Kevin P. McCulloch received April 9,
2012 (“McCulloch Reply”)).
The single remaining dispute that counsel have presented for
determination concerns what the plaintiff refers to as “settlement
related discovery.” (McCulloch Letter at 3; McCulloch Reply at 1).

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The defendant, Pearson Education, Inc. (“Pearson”), contends that
this characterization improperly conflates two separate categories
of

documents:

those

that

relate

to

confidential

settlement

agreements and attendant negotiations and those consisting of
evidence of punitive fees or penalties that the defendant may have
paid to resolve print overrun claims.

(Marston Letter at 1-2).

According to Pearson, it has or will produce documents in the
latter category but objects to disclosing confidential settlement
documents.
The distinction that Pearson draws is not the pertinent one.
The defendant relies on Rule 408 of the Federal Rules of Evidence,
which

provides

that

evidence

of

an

offer

of

compromise

or

settlement is inadmissible to prove or disprove the validity or
amount of a disputed claim.

Fed. R. Evid. 408(a)(1), (2).

However, evidence of settlement is admissible for other purposes.
Fed. R. Evid. 408(b).

Therefore, any analysis must begin with a

determination of the purpose for which the information is sought,
keeping in mind that, to be discoverable, the information need not
be admissible in itself but must only be “reasonably calculated to
lead to the discovery of admissible evidence.”

Fed. R. Civ. P.

26(b)(1).
Settlement of similar claims has consistently been found to be
evidence of willfulness in copyright infringement actions.
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See

Stevens v. Aeonian Press, Inc., No. 00 Civ. 6330, 2002 WL 31387224,
at *3 (S.D.N.Y. Oct. 23, 2002); Walt Disney Co. v. Best, No. 88
Civ. 1595, 1990 WL 144209, at *2 (S.D.N.Y. Sept. 26, 1990); Delman
Fabrics Inc. v. Holland Fabrics Inc., No. 84 Civ. 2512, 1985 WL
2571, at *6 n.4 (S.D.N.Y. Sept. 19, 1985); Lauratex Textile Corp.
v. Allton Knitting Mills Inc., 519 F. Supp. 730, 733 (S.D.N.Y.
1981). Accordingly, documents sought by the plaintiff that reflect
the final settlement of overrun claims are discoverable.
are

documents

that

show

the

date

on

which

such

So, too,

claims

were

initiated, since the duration of Pearson’s awareness of the overrun
issue is pertinent to willfulness.
By contrast, documents concerning the negotiation process that
led to the settlement of overrun claims need not be produced.
First, the request for “settlement communications” (McCulloch
Letter at 3) is vague and overbroad. Second, the plaintiff has not
articulated how documents reflecting, for example, the “bid and
ask” in negotiations concerning other claimants could plausibly
lead to admissible evidence on any issue in this litigation.
This is not to say that such documents are immune from
discovery: there is no settlement negotiation privilege. See In re
MSTG, Inc., __ F.3d __, __, Misc. No. 996, 2012 WL 1155736, at *9
(Fed. Cir. April 9, 2012).

Therefore, to the extent that the

plaintiff has otherwise identified specific categories of
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discoverable documents, those documents shall be produced even if
they were created in the context of settlement negotiations.
Conclusion
With respect to settlement-related discovery,

Pearson shall

produce within one week of the date of this order:
1.

Any document reflecting punitive fees or penalties that

Pearson has paid to resolve print overrun claims;
2.

Any

document

reflecting

final

settlement

of

claims

concerning print overruns;
3.

Documents sufficient to show the date on which any claim

concerning a print overrun was initiated; and
4.

Any specific document previously requested by plaintiff

that may have been withheld because it was created in the context
of settlement negotiations.
These documents shall be produced, as appropriate, pursuant to
the confidentiality order in place in this case.
respects

1

the

plaintiff's

application

to

compel

In all other
production of

settlement-related discovery is denied.

SO ORDERED.

C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
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Dated: New York, New York
April 12, 2012
Copies mailed this date:

Dan Nelson, Esq.

Kevin P. McCulloch, Esq.

Nelson & McCulloch

100 Park Avenue

New York, New York 10017

David W. Marston, Jr., Esq.

Ezra D. Church, Esq.

Robert A. Particelli, III, Esq.

J. Gordon Cooney, Jr., Esq.
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
Shana R. Cappell, Esq.
Namita E. Mani, Esq.
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178

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