This case arose out of an employment dispute involving 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 officer had a meeting with the city attorney in an attempt to return to work. The officer 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 officer’s return to work were discussed. The officer alleged that the city only required a general medical release, and not a release from a mental health provider. When the officer provided a release from his family physician, the city refused to honor it.
Thereafter, the officer sued the city for discrimination. The officer 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.
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?
The Supreme Court emphasized that the attorney who accompanied the officer to the meeting was merely a friend, that he was never retained as an attorney, and that the city was fully aware of his status at the meeting. Indeed, an email from the city attorney confirmed the understanding that he “[was] not technically representing” the officer and that he was merely “trying to facilitate the meeting” for the benefit of both parties. These facts played an important role in the Court’s analysis.
Rule 408 of the Rules of Evidence provides generally that statements made in the course of settlement discussions are inadmissible. In the end, the Court concluded that the city had “merely asserted, without supporting evidence, that [the attorney] engaged in settlement negotiations on behalf of [the officer].” Without this predicate showing, there was simply no basis for invoking the protections of Rule 408.
Furthermore, the Court noted that broad discovery is permitted under Rule 26 of the Rules of Civil Procedure. Here, the question of whether the city was requiring a general medical release or a mental health release was critically important. It was possible that after all of the facts are developed through discovery, the attorney’s testimony will be inadmissible. However, “the fact that evidence obtained from [the attorney’s] deposition may ultimately be inadmissible does not prohibit its discovery.” (emphasis in original)
Having found no clear-cut legal error in the trial court’s rulings, the Supreme Court denied the requested writ.
This case was placed on the Rule 19 docket for argument. However, it was decided by memorandum opinion--meaning that it has no precedential effect beyond the parties involved in this particular litigation. By doing so, the court avoided the more thorny legal issues presented by the city’s petition. In a footnote, however, the court signaled that it would be more inclined to grant a writ of prohibition in a case where an attorney was, in fact, engaged in settlement negotiations.