In the last 30 days, two U.S. courts of appeals have held (sort of) that no "settlement privilege" — a right to deny others access to the terms of your settlements with third-parties — exists.

In the first case, the Federal Circuit ruled, "in light of reason and experience, . . . that settlement negotiations related to reasonable royalties and damages calculations [in patent infringement cases] are not protected by a settlement negotiation privilege." In re MSTG, Inc., Misc. No. 996, slip op. 19 (Fed. Cir. Apr. 9, 2012) (denying mandamus petition seeking to halt order that required claimant to turn over documents showing settlement negotiations with infringement defendants).

The other case dealt with a barge that the Government of Ghana hired Balkan to render able to produce 150 megawatts of electricity. Balkan settled a case in Missouri federal court against its subcontractor, ProEnergy. Ghana wanted to know on what terms — not least because Balkan had accused ProEnergy in the Show Me state case of messing up the barge at the same time it said, in its dispute with Ghana, that everything on the barge worked just fine. The Eighth Circuit said "[w]e have no reason to assume that the district court intended to acknowledge a novel claim to privilege." Government of Ghana v. ProEnergy Services, LLC, No. 11-2714, slip op. 6 n.3 (8th Cir. May 1, 2012). But it (a) went on to hold that the district court acted within its discretion when it refused to order ProEnergy to turn over its settlement agreement with Balkan but (b) seemed pretty clear it thought the settlement privilege idea a dim one.

Blawgletter notes that the later case didn't cite the one from three weeks earlier. Clerks, wake up!