## Facts

- Numerous plaintiffs in a multidistrict litigation sued The Procter & Gamble Manufacturing Company and related entities (collectively, P&G), alleging that P&G’s denture cream products were toxic and caused neurological injuries.
- The MDL court had entered a comprehensive confidentiality and protective order governing discovery.
- In a prior 2007 product-liability case, Laura Day asserted similar claims against P&G. The case was mediated and settled.
- Counsel in the Day matter compiled materials for mediation in a “mediation binder,” which included Day’s demand letter, counsel’s damages calculations, and the settlement agreement between Day and P&G.
- MDL plaintiffs issued a third-party subpoena to Day’s former counsel seeking production of the mediation binder and related nonprivileged information from the Day matter.
- Day and her counsel did not object to producing the materials, except that the settlement agreement contained a confidentiality provision.
- P&G moved to quash the subpoena and sought a protective order, arguing that mediation and settlement materials were not discoverable, relying on Federal Rule of Evidence 408 and the settlement’s confidentiality clause.
- MDL plaintiffs stated they did not intend to use the settlement materials to prove P&G’s liability, agreed that Day’s specific settlement amount could be redacted, and argued the materials were relevant to show P&G had notice of the alleged risks as early as 2007 and to show the severity of the alleged injuries.

## Issues

1. Whether Federal Rule of Evidence 408 prevents discovery of mediation and settlement materials from a prior, similar lawsuit when the materials are sought for purposes such as notice or knowledge rather than to prove liability or the amount of a disputed claim.
2. Whether a confidentiality provision in a private settlement agreement bars compelled production of settlement and mediation documents in later litigation.
3. Whether, and on what terms, the court should quash a subpoena to a third-party law firm and/or enter an additional protective order concerning settlement-related discovery.

## Decision

- The court denied P&G’s motion to quash the third-party subpoena and denied P&G’s request for a protective order barring production.
- The court ordered that the mediation and settlement documents from the Day matter be produced to the MDL plaintiffs.
- The court required that use and distribution of the produced materials be governed by the MDL’s existing confidentiality and protective order.

## Legal Principles

- Federal Rule of Evidence 408 is directed to admissibility of settlement discussions for certain purposes; it does not, by itself, create a broad discovery bar for settlement or mediation materials.
- Material is not shielded from discovery solely because it may be inadmissible at trial; discovery under the federal rules can reach nonprivileged information that is relevant to claims or defenses.
- A contractual confidentiality clause in a settlement agreement does not automatically prevent a court from compelling production of otherwise discoverable, nonprivileged documents.
- Courts may address confidentiality concerns by requiring production subject to an existing confidentiality/protective order that limits use and dissemination of the materials.

## Conclusion

In this MDL discovery dispute, the court refused to block a subpoena seeking mediation and settlement materials from a prior denture-cream case involving similar allegations against P&G. The court ordered production of the Day matter documents and treated Rule 408 and the settlement’s confidentiality clause as insufficient to stop discovery, instead controlling confidentiality through the MDL’s existing protective order.


In re Denture Cream Products Liability Litigation, 2011 U.S. Dist. LEXIS 59202 (2011)