Legal Interpreting Services for Settlement Negotiations
We’ve blogged about professional certified legal interpreting and translation services that help protect attorney-client privilege when the lawyer and the client speak different languages. Last month the Federal Circuit court handed down its decision in In re MSTG, Inc., Misc. Dkt. No. 996, where it declined to create a privilege that would prevent the disclosure of settlement negotiations during the discovery process. Thus, the case essentially extended the scope of discovery into settlement negotiations. Noting that this was a matter of first impression, the court relied on six factors that the Supreme Court has previously considered when assessing issues of privilege:
- The policy decisions of the states, noting that many have adopted a mediation privilege but not a settlement negotiation privilege.
- Whether Congress has considered the issue, finding that Federal Rule of Evidence 408 cut strongly against such a privilege as it does not all settlement negotiations to ‘prove or disprove the validity or amount of a disputed claim…
- That a settlement negotiation privilege did not appear on the Advisory Committee of the Judicial Conference’s list of evidentiary privileges.
- Because settlements occur routinely without privilege, there is no reason to create a settlement negotiation privilege to help facilitate settlements in general.
- Having a privilege with numerous exceptions would make it uncertain.
- That mechanisms already exist that a court can use to protect and promote settlement negotiations.
With no privilege existing, settlement negotiations are now fair game for discovery. When these negotiations are conducted in a foreign language, certified foreign language interpreters and legal document translations will be required.