UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Karen Cook

v. Civil No. 06-cv-058-JD

CTC Communications Corp.

O R D E R

CTC Communications Corporation has filed an objection to the

magistrate judge’s ruling that granted Karen Cook’s motion to

compel the production of documents related to the termination of

Tracy Bradstreet. CTC requests a hearing on its objection. Cook

has responded to CTC’s objection and opposes a hearing.

I. Hearing

Under the local rules in this district, the court ordinarily

will decide motions without oral argument. LR 7.1(d). To

overcome that presumption, a party must provide a written

statement “outlining the reasons why oral argument may provide

assistance to the court.” Id. CTC has not provided any reasons

to support its request for a hearing. Therefore, a hearing will

not be held on this matter.

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II. Objection to Magistrate Judge’s Order

CTC objects to the magistrate judge’s order that requires it

to produce the requested documents pursuant to the parties’

stipulated protective order. CTC, therefore, seeks review of the

order pursuant to 28 U.S.C. § 636(b)(1)(A) and Federal Rule of

Civil Procedure 72(a). Cook opposes CTC’s motion.

Background

Karen Cook worked at CTC as Regional Human Relations Manager

for the Northern Region from August until November of 2005. Her

direct supervisor was Tracy Bradstreet. Cook alleges that she

immediately became aware that CTC was making employment decisions

in violation of federal law and that Bradstreet was authorizing

or, at least, not correcting those decisions. Cook’s role in

bringing those issues to Bradstreet’s attention and then to the

attention of Ray Allieri, CTC’s president and CEO, led to

acrimonious relations with Bradstreet. CTC’s in-house counsel,

James Prenetta, investigated Cook and Bradstreet. During a

telephone conference on November 10, 2005, Allieri announced that

Bradstreet would be leaving her job at the end of the month. 

After the meeting ended, Allieri told Cook that her employment

was terminated. 

Cook brought suit in early 2006. In her amended complaint

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she alleges wrongful discharge and violations of federal

employment laws: the Uniformed Services Employment and

Reemployment Act of 1994, the Fair Labor Standards Act, and the

Family and Medical Leave Act. Cook sent a request for production

of documents, which included the following: “Please provide any

documents that relate to the termination of Craig Smith, Joey

Sutton, Lisa Mayo, Tracy Bradstreet, and/or Ms. Cook.” CTC’s

counsel responded: “Defendant objects to Document Request No. 4

on the grounds that it seeks documents regarding Company

employees that may be protected by state or federal privacy laws. 

Defendant further objects to Document Request No. 4, as it

relates to Tracy Bradstreet on the grounds that Ms. Bradstreet’s

termination is not relevant to this action.”

 In the course of deposing James Prenetta on June 14, 2006,

Cook learned that Bradstreet had consulted with counsel after she

was terminated and that her counsel had sent a demand letter to

CTC, alleging that Bradstreet was terminated based on her age and

gender. Since then, CTC and Bradstreet have entered into a

settlement agreement.

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Discussion

In her motion to compel, Cook asked that CTC be required to

produce any and all documents that are related to CTC’s

termination of Bradstreet’s employment, including any

documentation of the settlement between CTC and Bradstreet. CTC

responded that all the documents requested by Cook are not

discoverable because Cook is seeking “inadmissible documents

related to the settlement of a separate matter raising unrelated

claims.” Def. Opp. at 1. CTC further responded that the

settlement documents are protected by privilege. The magistrate

judge ruled: “Production is to be made pursuant to the

stipulated protective order.” 

Under § 636(b)(1)(A) and Rule 72(a), the court may refer

non-dispositive matters to be decided by the magistrate judge. 

Parties are permitted to file objections to orders issued by the

magistrate judge, which are reviewed by the district court judge. 

Id. The court will not modify or set aside the objected-to

ruling unless “it has been shown that the magistrate judge’s

order is clearly erroneous or contrary to law.” § 636(b)(1)(A).

CTC has not offered an explanation, in its objection to the

magistrate judge’s ruling, as to why documents related to

Bradstreet’s termination, other than the settlement documents,

are not discoverable. Therefore, CTC has not provided any

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reasoned basis to contest the magistrate judge’s order to the

extent it addresses documents covered by Cook’s production

request that are not settlement documents. 

In support of its objection, CTC argues strenuously in favor

of a settlement privilege based on Federal Rule of Evidence 408. 

The party who invokes a privilege to avoid a discovery request

bears the burden of showing that it applies. Fed. R. Civ. P.

26(b)(5); see also In re Keeper of Records, 348 F.3d 16, 22 (1st

Cir. 2003). Because CTC did not comply with the requirements of

Rule 26(b)(5), to the extent it asserts a federal settlement

privilege as the basis of its objection, its objection is without

merit. See, e.g., In re Subpoena Duces Tecum, 439 F.3d 740, 751-

55 (D.C. Cir. 2006). 

Further, it is far from being clearly established that any

federal settlement privilege exists. CTC asserts, relying on

older decisions from around the country but not from this

district or the First Circuit, that “courts that have considered

this issue have consistently held that the party seeking to

discover documents protected by Federal Rule of Evidence 408 must

make a ‘particularized showing’ that the document sought will

lead to admissible evidence and is not being used for an improper

purpose.” Def. Opp. to Mot. at 7; Surreply at 2 (both citing

Bottaro v. Hatton Assocs., 96 F.R.D. 158, 160 (E.D.N.Y. 1982)). 

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That version of the legal landscape, however, fails to account

for the diversity of opinion this issue has generated. More

importantly, CTC fails to address a case from this district and

the First Circuit that is on point.

In the course of litigating an employment discrimination

case, plaintiff’s counsel moved to compel production of a

settlement agreement reached between the defendants and a

different plaintiff in a separate but related case. Sheppard v.

River Valley Fitness One, L.P., 428 F.3d 1, 4-5 (1st Cir. 2006). 

In response, defendants’ counsel, who represented the defendants

in both cases, claimed that the settlement agreement was

irrelevant to this case and moved for a protective order, which

was granted to the extent that it allowed “eyes-only review of

the settlement agreement.” Id. at 5. After reading the

agreement, the plaintiff’s counsel moved for relief from the

protective order and for sanctions. Id. The motion was granted

by the magistrate judge; that decision was modified by the

district court, and the First Circuit modified the result

further. Id. at 5-13. 

In its opinion, the First Circuit quoted the defendants’

counsel’s argument that “‘[s]ettlement agreements with related

parties--absent a showing of identity of issues or factual

stipulations having bearing on the subsequent case--are generally

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held as not relevant.’” Id. at 12. The First Circuit noted that

the cases cited for that proposition, some of which CTC relies on

here, actually acknowledge “that settlement agreements may be

used to impeach a witness,” which was an issue in the Sheppard

case. Id. The First Circuit affirmed the monetary sanctions

assessed against the defendants’ counsel for opposing disclosure

of the settlement agreement. Id.

In addition, the Eastern District of New York, the court

that issued the Bottaro decision requiring a “particularized

showing,” has reconsidered that rule and rejected it. Rates

Tech. Inc. v. Cablevision Sys. Corp., 2006 WL 3050879, at *3 fn.3

(E.D.N.Y. Oct. 20 2006) (“[T]o the extent the Botarro court may

have applied a heightened standard to the discoverability of

settlement agreements by requiring a ‘particularized showing of a

likelihood that admissible evidence will be generated,’ this

result is contrary to Rule 26 which permits discovery of any

relevant information ‘reasonably calculated to lead to the

discovery of admissible evidence.’”). The District of Rhode

Island also considered and rejected the Bottaro standard. 

Bennett v. Pere, M.D., 112 F.R.D. 136, 139-40 (D.R.I. 1986)

(Selya, J.). Although the Sixth Circuit has recognized a narrow

privilege limited to protecting the content of settlement

negotiations, Goodyear Tire & Rubber Co. v. Chiles Power Supply,

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Inc., 332 F.3d 976, 980 (6th Cir. 2003), it is the only circuit

to have done so, see In re Supbpoena, 429 F.3d at 754. Other

courts have rejected a settlement privilege arising from Rule

408. See, e.g., Clark v. Experian Info. Solutions, Inc., 2006 WL

931677 at *3-*4 (N.D. Ill. Apr. 10, 2006) (citing cases); Newman

& Assocs. v. J.K. Harris & Co., 2005 WL 3610140 at *2 (S.D.N.Y.

Dec. 15, 2005) (“Under federal law, courts have generally

declined to recognize a privilege that would preclude discovery

for the purpose of settlements or settlement negotiations.”).

CTC has not shown that the magistrate judge’s ruling,

granting Cook’s motion to compel “is clearly erroneous or

contrary to law.” § 636(b)(1)(A).

Conclusion

For the foregoing reasons, the defendant’s objection to the

magistrate judge’s ruling (document no. 25) is denied. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

November 13, 2006

cc: Samantha C. Halem, Esquire

Lauren S. Irwin, Esquire

Mary L. Marshall, Esquire

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