Having concluded that the settlement materials are relevant in the discovery sense, the court turns to a consideration of the existence vel non of any considerations which might militate against disclosure. At the outset, the court flatly rejects the plaintiffs' contention, drawn from Bottaro v. Hatton Associates, 96 F.R.D. 158 (E.D.N.Y.1982), that the movant has the burden of making " some particularized showing of a likelihood that admissible evidence will be generated by the dissemination of the terms of a settlement agreement." Id.
The court notes that a variety of courts have recognized a "settlement privilege," see Goodyear Tire Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976 (6th Cir. 2003) ("[W]e believe a settlement privilege serves a sufficiently important public interest, and therefore should be recognized.");Olin Corp. v. Ins. Co. of N. Am., 603 F. Supp. 445, 449-50 (S.D.N.Y. 1985) (same), or required a "particularized showing that admissible evidence will be generated" prior to allowing the discovery of a confidential settlement agreement, see Bottaro v. Hatton Assoc., 96 F.R.D. 158 (E.D.N.Y. 1982). Many have not.
Courts considering the issue have divided on whether it is the burden of the proponent or opponent of discovery to establish that the evidence sought is reasonably (or not reasonably) calculated to lead to the discovery of admissible evidence. Those courts placing the burden on the proponent of discovery follow Bottaro v. Hatton Associates, 96 F.R.D. 158 (E.D.N.Y.1982). Courts placing the burden on the opponent of discovery to show that the evidence is not likely to lead to the discovery of admissible evidence follow Bennett v. LaPere, 112 F.R.D. 136 (D.R.I.1986).
Unfortunately, there is country-wide discord about the showing of relevance required to justify disclosure of a settlement agreement. Plaintiffs primarily rely on Bottaro v. Hatton Assocs., 96 F.R.D. 158 (D.C.N.Y. 1982), and its progeny, to urge this Court to adapt a heightened relevancy standard for discovery related to confidential settlement agreements. (Docket No. 56 at 4.)
Plaintiffs contend that the Court should first determine the relevance of the settlement agreement (upon a showing that admissible evidence will be generated by the dissemination of the document), Bottaro v. Hatton Assoc., 96 F.R.D. 158 (E.D.N.Y.1982), and then weigh the competing interests of the parties in its continued confidentiality, McCullough v. Nichols, No. 9404CV0093, 1995 WL 679265 (Mass.Dist.Ct. Aug. 3, 1995). They assert that the agreement is highly relevant to their claim for attorneys' fees which were contingent upon success in both the underlying claim and the bad faith action.
Jackson responded by moving to compel production of those documents which had been withheld. Subsequently, on May 18, 1988, Magistrate Judge Buchwald ruled from the bench that although Rule 408 created no discovery privilege, Judge Neaher's decision in Bottaro v. Hatton Associates, 96 F.R.D. 158 (E.D.N.Y.1982), required Jackson to " show that the material sought will be admissible or will lead to admissible evidence." Transcript of May 18, 1988 Hearing before Hon.
See id. In Alessio, this Court cited to Bottaro v. Hatton Assocs., 96 F.R.D. 158, 160 (E.D.N.Y. 1982), when it held that: "Although Defendant is correct that it is entitled to setoff, immediate disclosure of the settlement agreement is not required . . . . [S]ettlement would not be evidence relevant to any issue in this case other than the ministerial apportionment of damages, a mathematical computation which the Court rather than the jury will perform.
Another session of this court has observed that “there are two divergent lines of thinking that courts have followed in deciding whether settlement agreements should be discoverable.” Sullivan v. Experian Info. Sols., Inc., CIVIL ACTION NO. 16-11719-MLW, 2019 WL 12315947, at *1 (D. Mass. Apr. 8, 2019) (citing Bennett v. Lapere, 112 F.R.D. 136, 138 (D.R.I. 1986); Bottaro v. Hatton Assocs., 96 F.R.D. 158, 160 (E.D.N.Y. 1982)). The court noted that Bennett favored “disclosure of settlement documents, stating that the burden should be on the opponent of discovery to show that the evidence is not likely to lead to the discovery of admissible evidence” i
Accordingly, only a "particularized showing of a likelihood that admissible evidence will be generated by the dissemination of the terms of a settlement agreement." Morse/Diesel, Inc. v. Fidelity & Dep. Co., 122 F.R.D. 447, 450 (S.D.N.Y.1988) (quoting Bottaro v. Hatton Assoc., 96 F.R.D. 158, 159 (E.D.N.Y.1982)); Morse/Diesel, Inc. v. Trinity Indus., 142 F.R.D. 80 (S.D.N.Y.1992); Doe v. Methacton Sch. Dist., 164 F.R.D. 175, 176 (E.D.Pa.1995) will justify the release of these settlement documents. See Chappelle v. Varano, 4:11-CV-304, 2012 WL 3241503 (M.D. Pa. Aug. 7, 2012).
See Tanner v. Johnston, No. 2:11-cv-00028-TS-DBP, 2013 WL 121158, 2013 U.S. Dist. LEXIS 3512, at *7 (D. Utah Jan. 8, 2013) ("Unfortunately, there is country-wide discord about the showing of relevance required to justify disclosure of a settlement agreement. Plaintiffs primarily rely on Bottaro v. Hatton Assocs., 96 F.R.D. 158 ([E.D.]N.Y. 1982), and its progeny, to urge this Court to adapt a heightened relevancy standard for discovery related to confidential settlement agreements . . . . In contrast, the [defendants] urge the Court to use the normal relevancy standard espoused at Fed.