In Wright v. Moore, (Del. Supr., July 2, 2007), read opinion here, the Delaware Supreme Court addressed the issue of admissibility of settlement evidence. Although considered in the context of a trial, most litigators at one time or another have had to confront the conundrum of dealing with at least portions of settlement discussions or settlement agreements finding their way into submissions of an opposing party that are sent to the court. But if settlement discussions or settlement agreements are inadmissible, a client will undoubtedly ask, how can the other side include a reference to them in documents filed with the court?
This opinion of the Delaware Supreme Court now provides helpful insight into the contours of Rule 408 of the Rules of Evidence (the Delaware rule is based on the federal rule), in the context of a trial, though the court’s analysis will also be useful, one hopes, in the pre-trial trenches.