May a party in an employment discrimination case take the deposition of an attorney who was present at a meeting discussing the terms and conditions of returning to work?
In this case, the respondent was a city police officer who was placed on administrative leave due to health concerns. According to the city, these health concerns were of a mental nature. The respondent had a meeting with the city attorney in an attempt to return to work. The respondent was accompanied by a friend, who was an attorney, but who had a conflict of interest preventing him from any formal representation. At this meeting, the terms of the respondent’s return to work were discussed. The respondent alleges that the city only required a general medical release, and not a release from a mental health provider. The respondent provided a release from his family physician, which the city refused to honor.
Thereafter, the respondent sued the city for discrimination. The respondent attempted to take the deposition of his friend who had been present at the earlier meeting. However, the city objected, claiming that the deposition would violate Rule 408 of the Rules of Evidence (dealing with settlement negotiations) and Rule 26 of the Rules of Civil Procedure (dealing with the scope of discovery). Thus, the city requested an order prohibiting the deposition from going forward. The trial court denied this request. The city then filed an original petition with the Supreme Court requesting a writ of prohibition.
The city makes two basic arguments.
First, the city puts forward a Rule-based argument. Rule 26 of the Rules of Civil Procedure defines the scope of discovery. Discovery, through depositions or otherwise, is proper only if the evidence being sought is admissible in and of itself or is reasonably calculated to lead to admissible evidence. Citing Rule 408 of the Rules of Evidence, the city claims that evidence of any statements made in the course of settlement negotiations is inadmissible.
Second, the city argues that public policy prevents the deposition from being taken. Specifically, the city says that permitting the deposition of an attorney who participated in settlement talks would have an unnecessary and far-reaching chilling effect.
According to the respondent, the meeting took place before any claim of any kind had been made. Therefore, Rule 408 does not apply.
Even if Rule 408 does apply, the city overlooks language establishing two important exceptions. The first of these exceptions involves evidence that is “otherwise discoverable.” The respondent argues that statements by the city attorney regarding terms for returning to work were admissions of a party and, therefore, were “otherwise discoverable.” The second exception involves evidence that is being offered for some purpose other than proving or disproving liability. Here, the respondent points out that evidence of the meeting is relevant to prove the return-to-work terms, which is an essential part of the respondent’s discrimination case.
This case is assigned to the Rule 19 docket, meaning that the Supreme Court anticipates there will not be any new or novel issues raised. The Court has recently placed special emphasis on the elements necessary to obtain a writ of prohibition. It will be interesting to see if the Court continues this trend. Regarding the merits, it is unlikely this case will have any sweeping impact. However, it may give the Court an opportunity to analyze Rule 408, its purpose, and its scope.