(a) Prohibited Uses. Evidence of the following is not admissible, on behalf of any party, either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, offering, accepting, promising to accept, or offering to accept a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations.
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. The court need not exclude evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.
The policy underlying this rule is the furtherance of compromise and settlement of disputes among parties. 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.
Rule 408 was amended, effective March 1, 2014, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.
As part of the March 1, 2014, amendments, subdivision (a) was amended to delete the reference to "liability" because "liability" is covered by the broader term "validity." No change in current practice or in the coverage of the rule is intended.
SOURCES: Minutes of Joint Procedure Committee of April 26-27, 2012, pages 16-17; 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.
SUPERSEDED: N.D.C.C. § 11-26-07.
CONSIDERED: N.D.C.C. § 33-08-13.
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).