DEFENDANTS' MOTION TO STRIKE EVIDENCE
CONCERNING SETTLEMENT NEGOTIATIONS ⁽¹⁾

Silverstein's Previous Superior Court Action

In September 1996, defendant Microsystems Software, Inc. terminated Silverstein's employment and Silverstein filed the Previous Superior Court Action in October 1998. In December 1998, the Microsystems Defendants filed an answer and counterclaim (the "Counterclaim") for libel against Silverstein (Second Complaint ¶ 16). After the Microsystems Defendants made an offer of judgment, which Silverstein accepted, the parties engaged in unsuccessful settlement discussions relating to the Counterclaim. The Microsystems Defendants later dismissed the Previous Superior Court Action without prejudice, which dismissal Silverstein has appealed.

ARGUMENT

An offer to compromise a dispute is inadmissible in evidence. LePage V. Bumila, 407 Mass. 163, 166 (1991) (offer of compromise inadmissible as an admission) ; Hunt v. Rice, 25 Mass. App. Ct. 622, 633 (1988) ("The letter in question was an offer to compromise the litigation. As such, it was properly excluded."); Chase v. Chase, 271 Mass. 485, 491 (1930) (finding no error for the "exclusion of a letter passing from plaintiff's to defendant's counsel during a period in which negotiations for compromise were going on. "). "This rule is founded in public policy, that there may be no discouragement to amicable adjustments of disputes, by a fear, that if not completed, the party amicably disposed may be injured." Liacos, Massachusetts Evidence, at 187 (7^th Ed. 1999); LaPagie, 407 Mass. at 166 ("the law looks with favor upon the settlement of controversies") (citations omitted); Anonik v. Ominsky, 261 Mass. 65, 67 (1927) (holding that evidence of attempts to "buy peace" from litigation are inadmissible).

"Evidence of conduct or statements made in compromise negotiations is likewise not admissible." Proposed Mass. R. Evid. 408 (2).

[P]roof of an offer by either party to compromise the controversy involved in a litigation between them, or of any statements which are an integral part of such an offer, is inadmissible. In Massachusetts the rule extends beyond proof of the bare facts of the offer and its precise terms, and also excludes proof of anything that occurred during the negotiations and constituted an inseparable part of the effort to compromise -- including declarations and admissions made for that purpose and with that end in view.

Young, Pollets and Poreda, Massachusetts Practice, vol. 19, §408.1 (emphasis added).

In spite of this well-established precedent, Silverstein includes in his Second Complaint allegations concerning positions taken by the Microsystems Defendants during settlement negotiations:

(a) Second Complaint ¶ 22 ("On September 20, 1999 MSI . . . [sent] a draft settlement agreement with respect to the libel counterclaim that required the plaintiff to agree to confidentiality in exchange for the counterclaim's being dismissed with prejudice"); and

(b) ¶ 24 ("On September 21, 1999 . . . [the Microsystems Defendants'] counsel . . . sent a letter to the plaintiff's counsel saying that the defendants wanted the "penalty" provision to restrain the plaintiff . . . ").

These references and documents derived from positions taken in settlement negotiations are inadmissible and should be stricken. LePage, 407 Mass. at 166; Hunt, 25 Mass. App. Ct. at 633; Chase, 271 Mass. at 491. Moreover, to the extent Silverstein relies upon the confidential settlement negotiations in opposing the Microsystems Defendants' Motion to Dismiss, those parts of the opposition should be stricken as well. Cf. Deisenroth v. Numonics Corn., 997 F. Supp. 153, 157 (D. Mass. 1998) (granting motion to dismiss on claims that settlement negotiations provided basis for G.L. c. 93A claim where "[e]xposing a party to Chapter 93A liability for statements made in failed settlement discussions would hardly further the public policy in favor' of compromise and settlement of disputes.").

CONCLUSION

For the foregoing reasons, the Microsystems Defendants respectfully request that the Court strike:

(a) paragraphs 22, 23, 24, 39, 43, 46, 52, 57 and 63 of the Second Complaint;

(b) exhibits 1 and 2 attached to the Second Complaint; and

(c) any other evidence offered by Silverstein concerning the confidential settlement negotiations between the parties.