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 accepting, offering, or promising to accept a valuable consideration in compromising or attempting to compromise the claim; and(b) Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; disproving a contention of undue delay; proving an effort to obstruct a criminal investigation or prosecution.
(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.
Rule 408 was amended, effective March 1, 2008.
The policy underlying this rule is the furtherance of compromise and settlement of disputes among parties. The general rule as to compromise finds support in North Dakota case law and similar objectives have been fostered in the North Dakota Rules of Civil Procedure and by statute. N.D.R.Civ.P. 68 provides that an unaccepted offer of judgment is inadmissible in a proceeding except to determine costs. Chapter 32-39, N.D.C.C., 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.
It is thought that open and effective discussions of 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 discoverable merely because it is presented in the course of compromise negotiations.
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: Minutes of Joint Procedure Committee of September 28-29, 2006, pages 14-16; April 8, 1976, page 23; October 1, 1975, page 3. Fed.R.Ev. 408; Rule 408, SBAND proposal.
CROSS REFERENCE: N.D.R.Civ.P. 12 (Defenses and Objections When and How Presented By Pleading or Motion Motion for Judgment on the Pleadings); N.D.R.Civ.P. 68 (Offer of Settlement or Confession of Judgment. Tender).