Whether you are a lawyer or a client, there is a good chance that, at least once, you have started a conversation with a real or potential adversary by saying “this is for settlement purposes only” or words to that effect. Experience shows that an acknowledgement that such discussions are effectively “off the record” is usually honored, if only out of professional courtesy, tradition, politesse or because a judge may be displeased with a perceived breach of such an agreement. Nevertheless, we should all go into such discussions with an awareness of the limitations, as a legal matter, of such an agreement.
Federal Rule of Evidence 408 is the starting point for any discussion about protections for settlement discussions. Rule 408 is a rule of evidence that governs the admissibility of evidence—documents or testimony—at trial. It does not purport to do anything else and its invocation is not a shield against public disclosure or formal discovery of the conversation or its subject matter.
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