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How can I invoke privilege for email communications when negotiating items with the other side's attorney?

Los Angeles, CA |

Can I ask the other attorney to agree that it would be privileged before I negotiate? To be sure it is privileged do I get his agreement in writing or is email good enough? I don't want the negotiations via email to end up at our court hearing.

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Attorney answers 3


It is wrong to assume that written settlement communications you have with opposing counsel are privileged. It is not. So, your attempt to claim a privilege that does not exist is futile. However, nothing stated in settlement discussions (written or otherwise) can be admitted to prove liability or to prove the invalidity of plaintiff’s claim.

If you chose to be cautions, you can label any written communication which contains settlement terms or discussions (via email or otherwise): Confidential Settlement Negotiation (or similar), Evidence Code sections 1152, 1154. That will highlight the fact that you view the communication inadmissible to prove liability. Still the communication could be admitted for other purposes, either in total or part.

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Michael Raymond Daymude

Michael Raymond Daymude


Re-reading your question I realize I did not answer all of your question. Yes, you can enter into a written confidentiality agreement with opposing counsel to provide protection for "all purposes." Whether or not it would hold up in court and whether opposing counsel would agree is anyone's guess.


Mr. Daymude is correct. If your communications are an attempt to settle a matter, mark the email clearly as "Settlement Negotiations" so that you and the court later can easily know that the particular email was part of the negotiations. Then move to exclude any of the communication at that time.

No agreement is required to invoke the right to exclude the settlement communications at the time of trial.

Good luck to you.

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There would be no privilege, but settlement discussions are not admissible at trial, so just label your emails as settlement discussions and then if opposing counsel tries to use it against you, you can object.