The opinion of the court was delivered by: RICHARD ROBERTS, District Judge
MEMORANDUM OPINION AND ORDER
Defendant has moved to enforce a settlement agreement that he
claims the parties entered. The plaintiff opposes the motion,
disputing that any binding agreement exists and arguing that his
attorney did not have authority to accept the proposed
In Makins v. District of Columbia, 861 A.2d 590 (D.C. 2004),
a client authorized an attorney to attend a settlement conference
before a magistrate judge and negotiate a settlement on the
client's behalf, but did not give the attorney actual authority
to settle the case. Id. at 592. The District of Columbia Court
of Appeals held that a party's lawyer has to have actual
authority from that party to enter into an enforceable settlement
agreement that binds the party, and that apparent authority would
not suffice to bind the party. Id. at 593.
The existence of an enforceable settlement agreement is in
dispute here. Generally, state contract law governs the
enforcement of settlement agreements in federal court. Makins v.
District of Columbia, 277 F.3d 544, 547-48 (D.C. Cir. 2002);
Samra v. Shaheen Business and Investment Group, Inc., 355 F.Supp.2d 483, 494 (D.D.C.
2005).*fn1 District of Columbia law requires a party seeking
to enforce a settlement agreement to prove the elements of
contract formation. Novecon Ltd. v. Bulgarian Am. Enter. Fund,
190 F.3d 556, 564 (D.C. Cir. 1999), cert. denied, 529 U.S. 1037
(2000); Greene v. Rumsfeld, 266 F.Supp.2d 125, 135-36 (D.D.C.
2003). The moving party must show an agreement to all material
terms and an intention of the parties to be bound by the
agreement. United States v. Mahoney, 247 F.3d 279, 285
(D.C. Cir. 2001); Greene, 266 F.Supp.2d at 136. As the party
seeking to enforce the settlement, defendant bears the burden of
demonstrating that plaintiff's counsel had the necessary
authority to bind plaintiff to the settlement. Hill v.
Georgetown Univ., ___ F.Supp. 2d ___, 2005 WL 1378761 at *5
(D.D.C. 2005). Defendant must prove that the plaintiff manifested
by representation or conduct that his attorney had actual
authority to agree to a negotiated settlement. Makins,
861 A.2d at 593.
Plaintiff claims in a footnote that his communications with his
attorney regarding the attorney's settlement authority remain
privileged. Pl's Supp. Report Concerning Case Status, p. 2 n. 2.
"[A]ny voluntary disclosure by the client to a third party
breaches the confidentiality of the attorney client relationship"
not only regarding the specific communication disclosed, but to
all other communications related to the same subject matter. In
re Sealed Case, 676 F.2d 793, 809 (D.C. Cir. 1982). A party is
not allowed to "partially disclose? the allegedly privileged
information in support of its claim against another, but then
assert? the privilege as a basis for withholding from its
opponent the remainder of the information which is necessary to
defend against the claim." Ideal Elec. Sec. Co., Inc. v. Int'l Fid.
Ins. Co., 129 F.3d 143, 151-52 (D.C. Cir. 1997); see also Byers
v. Burleson, 100 F.R.D. 436, 440 (D.D.C. 1983) (waiver occurred
where the client inserted the disputed issue into the case,
creating need to inquire further into privileged communications);
Wender v. United Servs. Auto. Ass'n, 434 A.2d 1372, 1374 (D.C.
Cir. 1981) (client waived attorney-client privilege over all
communications with counsel by asserting defense of reliance on
attorney's advice). The privilege can be waived in the context of
a dispute over settlement authority, see, e.g., Thornton v.
Syracuse Sav. Bank, 961 F.2d 1042, 1046 (2nd Cir. 1992)
(privilege waived when party injects into litigation issue of
attorney's conduct during settlement negotiations); Hartman v.
Hook-Superx, Inc., 42 F.Supp. 2d 854 (S.D. Ind. 1999) (plaintiff
cannot both assert attorney-client privilege and claim attorney
had no settlement authority), and can be waived as to those
matters asserted by the client in court filings. In re Sealed
Case, 676 F.2d at 809.
Plaintiff has waived the attorney-client privilege as to
communications with his attorney regarding the settlement
agreement. Plaintiff voluntarily disclosed in his opposition the
partial content of his previously privileged communications with
his attorney in an attempt to defend against enforcement of the
settlement agreement. See Mem. Supp. Pl.'s Opp'n Def.'s Renewed
Mot. Enforce Settlement Agreement at 2-9. Plaintiff's assertion
of this claim in an attempt to prevent the enforcement of a
settlement agreement is a tactical decision that the
attorney-client privilege was not intended to promote, and
therefore, should not protect. See Ideal Elec. Sec. Co.,
129 F.3d at 151-52.
Because there is a genuine threshold factual dispute regarding
the settlement agreement, it is hereby ORDERED that the parties confer and file by September 22, 2005
a joint status report and proposed order reflecting their views
on whether this matter should proceed with an evidentiary
hearing, or with limited discovery followed by dispositive
motions briefing, or in some other fashion. The report should
reflect mutually agreeable dates on which to hold any evidentiary
hearing, or a proposed schedule for limited discovery and
briefing, or such other proposal as the parties may suggest.
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