United States District Court, E.D. Missouri, Eastern Division
JAMES P. BLOUNT Plaintiff,
KEITH S. MAJOR, et al. Defendants.
MEMORANDUM AND ORDER
D. NOCE, UNITED STATES MAGISTRATE JUDGE
action is before the court on the motion of defendants
Matthew Miller, Albert Napier, and Zachary Nicholay to compel
discovery. (ECF No. 115). Specifically, defendants Miller,
Napier, and Nicholay seek to compel plaintiff to disclose the
terms of the settlement agreements he made with defendants
dismissed from this case. The court heard oral argument on
September 21, 2016.
March 16, 2015, plaintiff James P. Blount filed his First
Amended Complaint before this court, naming Casino One
Corporation, Ezell Cody, Hudson Services, Matthew Harmon,
Keith Major, Matthew Miller, Albert Napier, and Zachary
Nicholay, Nicholas Shelton, and Erich VonNida, among others,
as defendants. (ECF No. 41). In their responsive pleadings,
defendants Miller, Napier, and Nicholay each pled set-off as
an affirmative defense to plaintiff's claims:
If a defendant or another party or entity makes a settlement
with Plaintiff, or if Plaintiff receives anything of value
from any party, individual or entity, the amount of such
payment or consideration should be treated as a payment in
full satisfaction of the damages of Plaintiff, or in the
alternative, that the amount of such payment or consideration
should be a set off against any judgment that may be entered
(ECF Nos. 28 at 14; 29 at 14; 53 at 16; 54 at 26; and 55 at
26). On August 31, 2016, plaintiff filed a motion to dismiss
the following defendants with prejudice, pursuant to one or
more settlement agreements: Casino One Corporation, Ezell
Cody, Hudson Services, Matthew Harmon, Keith Major, Nicholas
Shelton, and Erich VonNida. (ECF No. 111). On September 16,
2016, plaintiff made a settlement demand of defendants
Miller, Napier, and Nicolay. Remaining defendants Miller,
Napier, and Nicolay have requested the terms of the
settlement agreements. Plaintiff has resisted production on
the grounds that (1) the settlement agreements contain
confidentiality clauses and (2) the agreements are not
relevant to a pre-judgment defense of set-off. The parties
have conferred in good faith, and plaintiff now moves to
compel the disclosure of the settlement agreements.
Rule of Civil Procedure 26 allows for the discovery of any
“nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case.” Fed.R.Civ.P. 26(b)(1). Plaintiff has not
claimed privilege as a protection from discovery. A concern
for protecting confidentiality does not equate to privilege,
and several courts have found that settlement agreements are
not shielded from discovery simply because they are
confidential. See, e.g., Transp. All. Bank, Inc. v. Arrow
Trucking Co., 2011 WL 4964034, at *1-2 (N.D. Okla. Oct.
19, 2011); Heartland Surgical Specialty Hosp., LLC v.
Midwest Div., Inc., No. 05-2164-MLB-DWB, 2007 WL
1246216, at *5 (D. Kan. Apr. 27, 2007); Cadmus
Commc'ns Corp. v. Goldman, 2006 WL 3359491, at *3-4
(W.D. N.C. Nov. 17, 2006); DIRECTV, Inc. v.
Puccinelli, 224 F.R.D. 677, 684 (D. Kan. 2004);
Bennett v. La Pere, 112 F.R.D. 136, 140 (D.R.I.
cardinal question, therefore, is whether the terms of the
settlement agreements are relevant to this lawsuit.
“Relevancy is broadly construed, and a request for
discovery should be considered relevant if there is any
possibility that the information sought may be relevant to
the claim or defense of any party.”
Puccinelli, 224 F.R.D. at 684 (citations omitted).
The party seeking discovery must make a threshold showing of
relevance, Hofer v. Mack Trucks, Inc., 981 F.2d 377,
380 (8th Cir. 1992), at which time the party resisting
discovery “must demonstrate to the court that the
requested documents either do not come within the broad scope
of relevance defined pursuant to Fed.R.Civ.P. 26(b)(1) or
else are of such marginal relevance that the potential harm
occasioned by discovery would outweigh the ordinary
presumption in favor of broad disclosure.” Frey v.
Fed. Reserve Bank of St. Louis, No. 4:15 CV 737 CEJ,
2015 WL 8276932, at *2 (E.D. Mo. Dec. 8, 2015) (citations
omitted). Evidence need not be admissible to be discoverable.
Miller, Napier, and Nicolay contend that plaintiff's
settlement amount is critically important to their
affirmative defense of set-off, and some or all of the
settlement may set off any claim against them, as provided by
Mo. Rev. Stat. § 537.060. They also argue that the
settlement amount is discoverable to show what, if any,
damages plaintiff may still allege, as well as the
defendants' ability to respond to plaintiff's
September 16, 2016 settlement demand. They assert that
without this information, they are unable to properly
evaluate the demand. Finally, they argue that disclosure of
the settlement is necessary to evaluate witness bias.
Plaintiff responds that the set-off defense applies only to
judgments, not settlements, and compelling plaintiff to
disclose terms of the settlement would have a chilling effect
on settlement negotiations.
contribution statute provides in part:
Defendants in a judgment founded on an action for the redress
of a private wrong shall be subject to contribution, and all
other consequences of such judgment, in the same manner and
to the same extent as defendants in a judgment in an action
founded on contract.
Mo. Rev. Stat. § 537.060. This statute, and
defendants' set-off defense, is predicated on the court
issuing a judgment. The court agrees that defendants cannot