Telling Deputy To ‘Retire And Go Away’ Not Admissible Evidence

Brett Elliot is a deputy sheriff with the Multnomah County, Oregon Sheriff’s Department. Elliot sued the County and several of its officials, alleging that he was retaliated against for whistleblowing.

During a conversation between Elliot’s attorney and an attorney representing the County, the County’s lawyer said that “he just wanted Elliott to retire and go away.” Elliot then filed an amended complaint in his lawsuit, alleging that the statement by the attorney was a separate act of retaliation.

A federal court ruled that the statement was part of a settlement discussion and could not be used by Elliot in any way. The Court found that Rule 408 of the Federal Rules of Evidence declared off limits from later use any settlement discussions. The Court noted that “the clear purpose of FRE 408 is to prevent settlement discussions from being used to establish liability in a case. As a result, parties can engage in full and frank settlement discussions without fear that their statements will be taken out of context and used to their detriment in court.

“Based on the description by Elliott’s counsel, defendants’ two counsel approached her and ‘once again asked what my client wanted. She explained that Elliott wanted his back pay and lost PERS contributions. Defendants’ counsel noted that they would be meeting with the Sheriff to discuss the case and wanted to know what they could tell him about Elliott’s demand. Later in the conversation, defendants’ counsel mentioned that Elliott should try to settle before it was too late. They also asked Elliott’s counsel to send an email with her client’s demand. Elliott’s counsel responded by asking what the case was worth to the Sheriff ‘to make [Elliott] go away.’ Defendants’ counsel answered that ‘it is the Plaintiff’s duty to open settlement.’

“Even from this perspective, it is clear that this conversation was a ‘compromise negotiation’ pertaining to settlement. Defendants’ counsel began the conversation asking what Elliott ‘wanted,’ suggested that counsel should try to settle, and explained that they would be discussing Elliott’s demand with their client, and that Elliott should ‘open settlement.’ Therefore, they qualify as statements ‘made during compromise negotiations’ under FRE 408.”

Elliott v. Station, 2012 WL 2375000 (D. Or. 2012).