For other provisions of similar importance, see Uniform Rules 52 and 53; California Code of Evidence § 1152, 1154; Kansas Code of Civil Procedure §§ 60–452, 60–453; New Jersey Rules of Evidence 52 and 53. In der Rechtssache Hudson Ins. Co. v.M.J. Oppenheim, 604411/05 (Sup Ct, NY County, May 25, 2010) (“Hudson”), Bransten J. found that statements contained in an expert opinion prepared as part of the settlement negotiations were not entitled to the usual protection of comparative communications and were therefore admissible in court. The lesson to be learned is that lawyers and clients must be careful when disclosing information during settlement discussions, otherwise admissible evidence will not be rendered inadmissible simply because it was provided during settlement negotiations. But § 1152 only protects against the use of compromise offers to prove responsibility for the claim that is the subject of the offer. It will not prevent the use of the Compromise Offers for other purposes, and such Offers can be found, even if they are not authorized.
Covell v. Superior Court (Drasin)(1984) 159 Cal.App.3d 39, 42;Ca. Practice Guide Civil Trials and Evidence, Rutter Group, 8:2813, citing Truestone, Inc. v. Simi West Industrial Park (1984) 163 Cal.App.3d 715, 725. Although Section 1152 is based on a strict policy of excluding evidence for offers of compromise and negotiations related to such offers, the scope of its confidentiality protection is somewhat limited. Thus, the exceptions permitted by the evidence were used to (1) only permit settlement discussions or the settlement agreement itself for other purposes; (2) to prove facts unrelated to the subject matter of the proceedings or where the application was based on an injustice committed during the settlement discussions;6 (3) to prove the amount at issue or “simply to indicate the applicant`s assessment of the value of the mark”;7(4) to prove by evidence from negotiations in a separate action that a party acted in bad faith;8 (5) to prove that evidence from negotiations in a separate suit indicated to that defendant that the conduct was unlawful;9 and (6) to prove the party`s intention to release by means of evidence from negotiations of a previous prosecution,10 among other things. b. Section 1120 of the Otherwise Admissible Evidence Code provides an exception for evidence presented in mediation if the evidence is otherwise admissible at a hearing or trial. If such material is otherwise authorized, it will remain authorized even if it is mentioned in the mediation.
Effective dispute resolution requires an open and comprehensive discussion of relevant evidence. “Making the content of such a discussion available for use in related litigation would further the very situation that Rule 408 seeks to avoid … An agreement is particularly desirable in CERCLA disputes. The District Court`s admission of the Smythe reports constituted a misuse of authority and a prejudicial error. In Fn. 57 It should be noted that its possession does not preclude the authorisation of the raw data and information used to produce the Smythe reports – in so far as such data and information are otherwise authorised. The exclusion in Rule 408 is limited to documents or statements that “would not have existed without the negotiations” and situations where “negotiations are not used as a means of thwarting prior disclosure by making existing documents inaccessible”. The House bill states that evidence of admissions of responsibility or opinions expressed during compromise negotiations is not admissible, but that evidence of facts disclosed during compromise negotiations is not inadmissible because it was first disclosed in compromise negotiations. The Senate amendment states that proof of conduct or statements in compromise negotiations is not permitted. The Senate amendment also provides that the rule does not require the exclusion of evidence that can otherwise be discovered simply because it is presented in compromise negotiations. With regard to mediation, the protection of confidentiality results from articles 1115-1128 and 703.5 of the Code of Evidence. Paragraph 1119(c) states that “all communications, negotiations or settlements by and between participants in mediation shall be treated confidentially” (emphasis added).
Paragraph 1119(a) states that no evidence of “anything said during mediation” is “admissible or subject to examination for discovery.” And the disclosure of such evidence should not be applied in a proceeding in which testimony can be forced. Paragraph 1119(b) states: “[n]o Letter . . . that are permitted or likely to be discovered for this purpose, in the course of or on the basis of mediations or mediation counsels, and the disclosure of the Scriptures will not be enforced. In addition, section 703.5 states that a mediator is not permitted to testify in civil proceedings about statements or conduct in mediation, subject to certain very limited exceptions related to contempt and criminal conduct. The confidentiality provisions of these sections of the Code of Evidence raise questions about the exclusion of evidence. The laws and the cases in which they are interpreted indicate whether the evidence is admissible or whether it is excluded because of its confidential nature. The rule was not referred to as a privilege, but as an exclusion rule. Simmons vs. Ghaderi, above 588.
Although the principle of confidentiality is very broad and absolute, the legislation does not clearly define any remedy other than the exclusion of evidence. It may reasonably be concluded that the creation of an unrestricted confidentiality rule in combination with other judicial remedies would lead to remedies such as injunctions and damages, but this is not found in the laws and the supporting case law is limited. .