Richard B. McNamara, Presiding Justice.
The Petitioner, Chase Bailey, brought this Petition for Rescission and Damages against the Respondents, James M. Archibald, Port Capital Management Group, LLC ("Port Capital"), American General Life Insurance Company ("American General"), and Security Life of Denver Insurance Company ("Security Life"), seeking civil and equitable relief for rescission (Count I), securities fraud (Count II), and false representation (Count III). Respondents Archibald and Port Capital move to compel production of a document within the Petitioner's possession. The Petitioner objects. For the reasons stated in this Order, the Respondents' Motion to Compel is GRANTED.
The Respondents requested that the Petitioner produce "[a]ll documents evidencing communications, whether oral or in written or electronic form, between [the Petitioner] and Karl Hahn from 2008 until present." See Resp'ts' Mot. to Compel at Ex. l. Hahn is the Petitioner's former financial advisor. In his response to the Respondents' request, the Petitioner stated that he was withholding a six-page document, dated July 21, 2010, entitled, "Personal and Confidential/Attorney Client Privilege-Chase Bailey through Attorney Michael Chubrich." See Resp'ts' Mot. to Compel at Ex. 2. The document is a letter from Hahn to the Petitioner's Attorney, Michael Chubrich, which attempted to resolve all disputes between the Petitioner and Hahn. See Resp'ts' Mot. to Compel at Ex. 3. In essence, the Petitioner asserts that the letter is a "settlement offer." See Pet'r's Objection at 2.
The Respondents now request that this Court compel the Petitioner to produce the document. The Petitioner objects and makes two arguments: first, he argues that the document is inadmissible as an offer to settle under N.H. R. Evid. 408; and second, he argues that the document is subject to the lawyer-client privilege under N.H. R. Evid. 502(b)(3)- After reviewing the document in camera and considering the applicable law, the Court does not find either of the Petitioner's arguments persuasive.
Super. Ct. R. 35(b)(1), provides, "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...." Rule 35(b)(1) provides further that, "it is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Id . Therefore, when determining whether to compel a party to disclose a document, two questions arise: (1) whether the document is privileged and, therefore, undiscoverable; and (2) whether the document is relevant to the subject matter involved in the pending action. See Desclos v. S. N.H. Med. Center, 153 N.H. 607, 611 (2006). The Petitioner does not appear to challenge that Hahn's letter is relevant to the subject matter of the present action; instead, he argues only that the letter is privileged.
First, the Petitioner argues that because Hahn's letter is an offer to settle the case, N.H. R. Evid. 408 prohibits discovery of it. Rule 408 provides, in part, that evidence of settlement "is not admissible to prove liability for or invalidity of the claim or its amount." However, Super. Ct. R. 35 makes clear that a document need not be admissible in order to be discoverable. Instead, so long as the document is reasonably calculated to lead to discovery of admissible evidence, the document is discoverable. Federal courts, applying the narrower "relevant to a claim or defense" standard of FRCP 26(b)(1), have generally found that documents relating to settlement are discoverable. See, e.g., Conopco, Inc. v. Wein, 2007 WL1040676, *5 (S.D.N.Y. April 4, 2007). Here, a six-page letter from the Petitioner's former financial advisor regarding some of the finanacial transactions at issue is at least reasonably calculated to lead to discovery of admissible evidence.
Although not specifically argued by the Petitioner, it is true that a handful of federal courts have held, relying on the purposes behind the cognate Federal Rule 408, that there exists a "settlement privilege, " which bars any settlement offer from discovery, gee Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc.. 332 F.3d 976, 980-81 (6th Cir. 2003) ("The public policy favoring secret negotiations, combined with the inherent questionability of the truthfulness of any statements made therein, leads us to conclude that a settlement privilege should exist....") However, the majority of other courts have rejected a settlement privilege arising from Rule 408. See, e.g., Matsushita Elec. Industrial Co. Ltd. v. Mediated Inc., 2007 WL 963975, *3-4 (N.D. Cal. March 30, 2007"): see also, e.g.. Big Baboon Corp. v. Dell, Inc., 2010 WL 3955831 (CD. Cal. October 8, 2010); In re Gen. Motors Engine Interchange Litig.. 594 F.2d 1106, 1124 (7th Cir. 1979); Computer Assocs. Int'l, Inc. v. Am. Fundware, Inc., 831 F.Supp. 1516, 1531 (D. Colo. !993)- The New Hampshire Supreme Court has never recognized such a privilege. As a result, this Court cannot recognize a "settlement privilege."
Petitioner also argues that Hahn's letter is subject to the Attorney-Client Privilege found in N.H. R. Evid. 502(b)(3). That Rule states, in relevant part,
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client... (3) by the client or the client's representative or the client's lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein...."
N.H. R, Evid. 502(b)(3). Importantly, for the purposes of the rule, a "client" is defined as, "a person...who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him." N.H. R. Evid. 502(b)(3). The letter is not protected by the Attorney-Client Privilege.
In order for the privilege to apply to the letter, Hahn would have to be the "client, " as Rule 502(b)(3) protects only communications made " ...