RULE 408. COMPROMISE AND OFFERS TO COMPROMISE
(a) Prohibited Uses. Evidence of the following is not admissible on behalf on 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 to prove 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 regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority. 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 for
another purpose, such as purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice of a witness,; disproving a contention of undue delay ,; or proving an effort to obstruct a criminal investigation or prosecution.
Rule 408 was amended, effective___________________________.
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
( Larson v. Quanrud, Brink § Reibold, 78 N.D. 70, 47 N.W.2d 743 (1951)) and similar 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 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. " The purpose of the rule is accomplished by rendering inadmissible evidence of the liability 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 ____________________. 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. Paragraph (a)(2) was amended to bar evidence from settlement negotiations in a civil case from being used in a subsequent criminal case unless the civil case was brought by a government agency.
Sources: Joint Procedure Committee Minutes
: of ________________ page ____; 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.
Rules: Considered: Rules Cross Reference: N.D.R.Civ.P. 12 (Defenses and ObjectionsWhen and How PresentedBy Pleading or MotionMotion for Judgment on the Pleadings); (j), N.D.R.Civ.P. 68 (Offer of Settlement or Confession of Judgment. Tender) (b), N.D.R. Civ. P.