United States District Court, N.D. Oklahoma
MICHELLE RIGDON, individually and as Widow and Next of Kin of GREG RIGDON, deceased, Plaintiff,
FLOWSERVE CORPORATION, et al., Defendants, and VIBESERVE CORPORATION Defendant/Third-Party Plaintiff
WHITE RELIABILITY SERVICES, INC Third-Party Defendant.
OPINION AND ORDER
H. MCCARTHY, United States Magistrate Judge
Energy, Inc. and CVR Refining, LP's Motion to Compel
Production of Settlement Agreements, [Dkt. 170], is before
the undersigned United States Magistrate Judge for decision.
The motion has been fully briefed, [Dkt. 170, 186, 187], and
is ripe for decision. CVR Energy, Inc. and CVR Refining,
LP's (CVR) motion is denied.
and some Defendants in this action engaged in private
mediation. The claims between Plaintiffs and the
participating Defendants were settled. The settling parties
agreed that the terms of the settlement are confidential. CVR
seeks an order compelling production of the settlement
agreements. In their joint response to CVR's motion, the
settling parties point out that CVR has not served a
discovery request seeking production of the settlement
agreements. Since the settlements were reached after the end
of the discovery period this is no bar to CVR's motion.
The settling parties also point out that CVR's motion
does not contain the required statement that counsel have met
and conferred in good faith in an attempt to resolve their
differences. LCvR 37.1. The setting parties assert that no
meet and confer took place and that CVR's motion should
be stricken for that failure. The court agrees that it would
be appropriate to deny CVR's motion for its failure to
engage in the good faith conference required by Fed.R.Civ.P.
37(a)(1) and LCvR 37.1. However, in this instance judicial
efficiency is served by denying the motion on its merits.
argues that the settlement agreements are relevant and
therefore discoverable because they “may bear on the
credibility of testimony, ” and “are relevant to
the evaluation and settlement of the remaining claims.”
[Dkt. 170. p. 1]. CVR cited Trinity Mortgage Companies,
Inc. v. Dryer, 09-CV-551-TCK-FHM (June 8, 2010), 2010 WL
3565525 (N.D. Okla.) in support of its argument. In that case
the court ordered production of a settlement agreement. That
case bears no resemblance to this one. The damages for the
legal malpractice in Trinity were derived in part
from the settlement of a different lawsuit. The court ordered
production of the settlement agreement because of the
relationship between that settlement and the damages at
issue. In the present case CVR has not identified any claim
or defense made more or less likely in the instant suit by
reason of the settlement of some parties. In other words,
CVR has not demonstrated the relevance of the settlement
agreements sought. The court is not persuaded that the
settlement agreements should be produced without some showing
baldly asserts that the settlement agreements “may bear
on witness credibility and bias.” [Dkt. 170, p. 4]. CVR
also asserts that the terms of the agreements may create bias
in corporate witnesses of settling defendants testifying at
trial. CVR does not, however, explain how such bias may occur
in this case where witness statements were gathered within
hours after the incident in question and where discovery was
completed before any settlement occurred.
argues that the settlement agreements should be produced
because some courts have ordered production of settlement
agreements on the basis that the agreements enable the
remaining parties to engage in settlement discussions, and to
evaluate their liability, risk, and defense strategy. CVR
cited Transportation Alliance Bank, Inc. v. Arrow
Trucking Co., 10-CV-16-GKF-FHM (October 19, 2011), 2011
WL 4964034 (N.D. Okla.). In that case the court ordered
production of a settlement agreement under the peculiar facts
presented. Those facts bear no similarity to the instant
case. CVR relies on Zlotogura v. Progressive Direct Ins.
Co., 2013 WL 1855879 (W.D. Okla.). In that case the
defendant insurance company sought production of the
settlement agreement between Plaintiff and the other
insurance company that provided coverage for a motorcycle
accident. The Zlotogura Court ruled that the
settlement agreement was not privileged, but the key to
requiring production of the settlement agreement was the
finding that the settlement agreement was relevant to the
claims and defenses in that case. Id. at *2. In the
present case, there has been no showing of how settlement is
related to any of the claims or defenses.
reply brief CVR asserts that it has a justifiable curiosity
about why none of the settling defendants have been
dismissed. [Dkt. 187, p. 5]. That curiosity could have been
satisfied by engaging in the required meet and confer.
Curiosity does not present a reason to require production of
the settlement agreements. In any event, stipulations of
dismissal were filed on June 21, 2017.
court is aware that maintaining the bargained for
confidentiality of settlement agreements promotes the
laudable goal of inexpensively resolving disputes through
out-of-court settlement. To the extent possible, the court
honors the confidentiality clauses contained in settlement
agreements. However, a confidentiality clause in a settlement
agreement is not a bar to the discovery of a settlement
agreement where the settlement agreement itself is relevant
to a party's claims or defenses. Fed.R.Civ.P. 26(b)(1).
CVR has not demonstrated that the settlement agreement is
relevant, and for that reason CVR Energy, Inc. and CVR
Refining, LP's Motion to Compel Production of Settlement
Agreements, [Dkt. 170], is DENIED.
 CVR asserts that the parties
communicated orally and in writing which complied with LCvR
37.1. The oral communication took place at a deposition.
While a conversation between counsel during a deposition may
qualify as a meet and confer, this one does not. [Dkt.
186-4]. Nor does the exchange of e-mails satisfy the
requirement for a personal meeting and a sincere attempt to
resolve differences as required by LCvR 37.1. The very
question about whether a meet and confer took place
demonstrates that one did not occur.
 The settling parties have represented
that the settlement agreements do not contain any collusive
so-called “Mary Carter” agreements or any
admissions of liability. [Dkt. 186-1, ...