FRE/protective order questions re settlement negotiations
Posted: Mon May 07, 2018 7:36 pm
Hey TLS,
I'm currently working on a memo assignment and have had a hard time finding answers to a few of the legal questions it raises. If anyone has any insight regarding these issues and can direct me to some on-point authorities, I would greatly appreciate it. My main questions are as follows:
(1) Would materials prepared and presented by a government entity for the purpose of making a reverse proffer in a civil enforcement action (in federal court) qualify as "conduct or ... statement made during compromise negotiations about the claim" under F.R.E. 408? Intuitively, it seems obvious that the answer should be "yes," but I've been unable to find any sources that expressly support this conclusion.
(2) In moving for a protective order for highly sensitive materials under F.R.C.P. 26(c), where mere knowledge of the motion/protective order could have an adverse impact on the government's interests in the litigation (by potentially tipping off defendants that a codefendant has agreed to cooperate), is it possible to keep this motion/order off the docket entirely? I realize that such secrecy may ordinarily transgress principles of judicial transparency implicit in the First Amendment, but we think that it may be warranted under the unique circumstances of this case.
Again, any help would be appreciated!
I'm currently working on a memo assignment and have had a hard time finding answers to a few of the legal questions it raises. If anyone has any insight regarding these issues and can direct me to some on-point authorities, I would greatly appreciate it. My main questions are as follows:
(1) Would materials prepared and presented by a government entity for the purpose of making a reverse proffer in a civil enforcement action (in federal court) qualify as "conduct or ... statement
(2) In moving for a protective order for highly sensitive materials under F.R.C.P. 26(c), where mere knowledge of the motion/protective order could have an adverse impact on the government's interests in the litigation (by potentially tipping off defendants that a codefendant has agreed to cooperate), is it possible to keep this motion/order off the docket entirely? I realize that such secrecy may ordinarily transgress principles of judicial transparency implicit in the First Amendment, but we think that it may be warranted under the unique circumstances of this case.
Again, any help would be appreciated!