RULE 408. COMPROMISE AND OFFERS TO COMPROMISE
(a) Prohibited Uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing, offering, or promising to furnish
or (2) accepting, offering, or promising
to accept , a valuable consideration in compromising or
attempting to compromise a the
claim; and which was disputed as to either validity or amount, is not admissible
liability for, invalidity of, or amount of the claim or any other claim. Evidence of
(2) conduct or statements made in compromise negotiations is likewise not admissible. Exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations is not required.
(b) Permitted uses. This rule does not require exclusion if the evidence is offered
another purpose, such as purposes not prohibited by subdivision (a).
permissible purposes include proving a witness's bias or prejudice of a
a contention of undue delay ,; or proving an effort to
obstruct a criminal investigation or
Rule 408 was amended, effective March 1, 2008.
The policy underlying this rule is the furtherance of compromise and settlement of
among parties. The general rule as to compromise finds support in North Dakota case law
( Larson v. Quanrud, Brink & Reibold, 78 N.D. 70, 47 N.W.2d 743 (1951))
objectives have been fostered in the North Dakota Rules of Civil Procedure and by statute.
Rule N.D.R.Civ.P. 68 , N.D.R. Civ. P., provides that
an unaccepted offer of judgment is
inadmissible in a proceeding except to determine costs. N.D.C.C. ch. 32-39 provides that
a voluntary partial payment of a claim is inadmissible for the purpose of determining either
the amount of a judgment or the liability of a party.
Admissions of independent fact or other evidence of statements or conduct disclosed in the
course of a compromise negotiation are likewise protected by this rule.
This marks a
departure from the common law, in general, and from North Dakota case law. Larson v.
Quanrud, Brink & Reibold, supra. It is thought that open and effective discussions
compromise may be held only if the parties know in advance that they will not jeopardize
their case by fully discussing all aspects of a claim. This does not mean, however, that the
mere recital of evidence during a compromise negotiation precludes the admission of that
evidence. The rule "does not require the exclusion of any evidence otherwise
merely because it is presented in the course of compromise negotiations. "
The purpose of the rule is accomplished by rendering inadmissible evidence of the
of parties or validity of claims brought out in valid negotiations. Whenever the evidence is
introduced for a purpose other than proving liability or validity, or when the claim is not
really disputed (for example, when the intent is to persuade a creditor to accept a sum which
is less than an admittedly due amount) the rule does not apply.
Rule 408 was amended, effective March 1, 2008. Subdivision (a) was amended to prohibit the use of statements made in the course of settlement negotiations for impeachment of a witness through prior inconsistent statement or contradiction. A further amendment to subdivision (a) clarifies that a party cannot use its own statements and offers made in settlement negotiations to prove the validity, invalidity or amount of a claim.
Sources: Joint Procedure Committee Minutes
: of September 28-29,
2006, pages 14-16;
April 8, 1976, page 23; October 1, 1975, page 3. Rule Fed.R.Ev.
408 , Federal Rules of
Evidence; Rule 408, SBAND proposal.
Superseded: N.D.C.C. § 11-26-07.
Considered: N.D.C.C. § 33-08-13.
Considered: Rules Cross Reference: N.D.R.Civ.P. 12
(Defenses and ObjectionsWhen and
How PresentedBy Pleading or MotionMotion for Judgment on the
N.D.R.Civ.P. 68 (Offer of Settlement or Confession of Judgment.
Tender) (b), N.D.R. Civ.