Q. A recently terminated employee retained an attorney, who then engaged in pre-suit negotiations with our HR vice president. During those negotiations, our VP disclosed, in writing, some confidential information about the internal investigation that led to this employee’s termination. Negotiations have since broken down and the employee filed suit. Should I be concerned about these pre-suit disclosures coming back to haunt us in the litigation?
A. Probably, no. Evidence Rule 408 prohibits a party from introducing into evidence offers to settle, as well as conduct or statements made in settlement negotiations regarding the claim.
Courts have concluded that discussions of an internal investigation, couched within active pre-suit settlement negotiations, are within the protections of Rule 408. The court will likely bar any use of the letter by the employee.