1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

IN RE: FLAT GLASS ANTITRUST ) Misc. 9-180

LITIGATION ) MDL No. 1942

---------------------------------------------------- )

This document relates to: )

JELD-WEN, INC. v. AGC AMERICA, ) 11-658

INC., et al.

MEMORANDUM ORDER

Before the Court is Defendant’s Motion to Compel discovery of a settlement agreement 

entered into by Plaintiff and dismissed Defendant PPG. Defendant contends that the settlement 

amount is relevant as evidence of an offset to damages against the remaining Defendants, and as 

to potential bias or prejudice of PPG witnesses who might testify at trial. Opposing the Motion, 

Plaintiff contends that it does not intend to call any PPG witnesses to trial, which will occur in 

Oregon, and that it is willing to produce the settlement agreement, if necessary, after a verdict is 

rendered in Oregon.

According to Federal Rule of Civil Procedure 26(b), "[p]arties may obtain discovery 

regarding any matter, not privileged, which is relevant to the subject matter involved in the 

pending action." In turn, Federal Rule of Evidence 401 defines "relevant evidence" as "evidence 

having any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without the 

evidence." Discovery must be "reasonably calculated to lead to the discovery of admissible 

evidence.” Fed. R. Civ. P. 26(b)(1). Fed. R. Evid. 408, which makes settlement agreements 

inadmissible under certain circumstances, rests on a strong policy of encouraging the settlement 

of disputes. Sweeten v. Layson's Home Improvements, Inc., No. 4-2771, 2007 U.S. Dist. 

LEXIS 28826, at *7 (M.D. Pa. Apr. 19, 2007). Thus, "the principles underlying Fed. R. Evid. 

Case 1:11-cv-00385-MC Document 125 Filed 04/19/13 Page 1 of 3
2

408 and Fed. R. Civ. P. 26 are in conflict." Fidelity Fed. Sav. & Loan Ass’n v. Felicetti, 148 

F.R.D. 532, 534 (E.D. Pa. 1993).

The mere fact that settling parties have agreed to maintain the confidentiality of their 

agreement does not automatically serve to shield the agreement from discovery. We 

note that several courts have addressed the question of whether a non-settling party 

should have access to a settlement agreement that is confidential by agreement of the 

signatories, as is the case here. "None of these courts have blithely permitted discovery, 

but rather require some heightened showing of relevance or need." 

Sippel Dev. Co. v. W. Sur. Co., No. 5-46, 2007 U.S. Dist. LEXIS 27644, at *6 (W.D. Pa. Apr. 

13, 2007) (citations omitted).

Because public policy favors the settlement of disputes, courts have imposed on the party 

seeking discovery of a confidential settlement agreement the burden "to make a particularized 

showing 'that the documents relating to the settlement negotiations are relevant and likely to lead 

to the discovery of admissible evidence.'" Key Pharmaceuticals, Inc. v. ESI-Lederle, Inc., No. 

96-1219, 1997 U.S. Dist. LEXIS 13328, at *8 (E.D. Pa. Aug. 29, 1997).

In this case, neither of the grounds for Defendant’s Motion is sufficiently compelling. 

First, although a confidential settlement agreement may be relevant to witness bias, Defendant 

contends only that the agreement at issue is relevant to the bias of “any PPG witnesses” that 

might be called at trial. Broad assertions, without more, are insufficient to obtain discovery of a 

confidential release. See Doe v. Methacton Sch. Dist., 164 F.R.D. 175, 176 (E.D. Pa. 1995). 

Moreover, Plaintiff has stated its intention not to call any PPG witnesses at trial. Second, Courts 

within this Circuit have refused to permit discovery of confidential settlement agreements on 

grounds that the amount will result in a set-off of damages, because set-off may be addressed 

after a verdict has been entered. Dutton v. Todd Shipyards Corp., No. 9-62916, 2009 U.S. Dist. 

LEXIS 107936 (E.D. Pa. Nov. 17, 2009). Although the extent of Defendant’s liability is 

Case 1:11-cv-00385-MC Document 125 Filed 04/19/13 Page 2 of 3
3

certainly relevant to potential settlement, relevance to settlement negotiations is not relevant to 

the subject matter of the action, as contemplated by applicable rules and standards.

AND NOW, this 19th day of April, 2013, it is hereby ORDERED, ADJUDGED, and 

DECREED that Defendant’s Motion to Compel is DENIED.

BY THE COURT:

/s/Donetta W. Ambrose

Donetta W. Ambrose

Senior Judge, U.S. District Court

Case 1:11-cv-00385-MC Document 125 Filed 04/19/13 Page 3 of 3