§ 14.09 Discovery

• Jurisdiction: United States

§ 14.09 Discovery

As originally enacted, Rule 408 provided that evidence otherwise discoverable need not be excluded merely because it was presented during compromise negotiations. The Senate added this provision so attorneys would not attempt to "immunize" documents from discovery by disclosing them in settlement negotiations.³⁸ A 2006 amendment deleted this provision because it was superfluous.³⁹

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Notes:

^[38] S. Rep. No. 1277, 93d Cong., 2d Sess. (1974).

^[39] Fed. R. Evid. 408 advisory committee's note (2006) ("The intent of the sentence was to prevent a party from trying to immunize admissible information, such as a pre-existing document, through the pretense of disclosing it during compromise negotiations. But even without the sentence, the Rule cannot be read to protect pre-existing information simply because...