FRE 408 Does Not Prohibit Evidence of Settlement Offer to Show Lack of Irreparable Harm

The court denied plaintiff's motion for a preliminary injunction to preclude defendant from selling its accused email products and determined that plaintiff failed to establish irreparable harm. "[Plaintiff's] own actions belie its assertion that it requires immediate, equitable relief. . . . [O]utside of the conclusory allegations of its Chief Executive Officer and Founder, [plaintiff] has produced no substantive evidence of loss of revenue, market share, goodwill, shelf space or any of the other factors which combine to prove injuries which cannot be made whole by monetary damages. . . . Evidence presented by the parties which was filed under seal but briefly discussed during oral argument raises ER 408 questions. . . . As highlighted by [defendant], Rule 408 prohibits the use of offers to compromise when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction. [Defendant], however, does not offer the evidence in dispute to establish liability, validity or amount of a claim. Rather, the evidence is presented to establish whether there would be irreparable harm to [plaintiff] which could not be compensable by money damages, not the validity of the claim or amount of the harm."

BitTitan, Inc. v. SkyKick, Inc., 2-15-cv-00754 (WAWD August 27, 2015, Order) (Martinez, J.)