The court granted plaintiff’s motion to reconsider an earlier order directing plaintiff to produce all documents on its privilege log. However, upon reconsideration, the court rejected plaintiff’s assertion of a purported “settlement negotiation privilege derived from Federal Rule of Evidence 408.” “[N]ew federal privileges are not to be created by the courts lightly. Liberal discovery is the general rule. More and more exceptions to this general rule threaten to swallow it. This case, in particular, illustrates the danger of creating new privileges. Both parties here have repeatedly engaged in disingenuous invocation of privileges and exceptions in a show of blatant gamesmanship, abusing the rules of discovery in either an attempt to create delay or to avoid surrendering evidence they know full well should be turned over. They don’t need yet another tool by which to abuse the system. The Court finds no discovery privilege exists regarding settlement negotiations. Admissibility, of course, is an entirely different matter. But if [plaintiff] continues to withhold these documents, it must do so on a basis other than settlement 'privilege.'"
Pactiv Corporation v. Multisorb Technologies, Inc. et al, 1-10-cv-00461 (ILND May 18, 2012, Order) (Leinenweber, J.).