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For example, the CLRA (Cal. Civ. Code §§ 1782, 1750, et seq.) requires notice of demand 30 days prior to the commencement of an action in certified or registered mail, return receipt requested, otherwise the case shall not remain.

That clearly allows an affirmative defense to the servee, if they didn’t receive service of process as required by the statute, otherwise, liberally construed — also supported by similar general treatment for any other services of process requirements for around the past 50 years in California.

Does it mean that asserting e.g. a confidential settlement communications privilege as the serving part will give the defense to the servee if you tried to prove in court that you, in fact, complied with such a notice requirement pursuant to the above-example statute? Would they be able to say the serving party cannot even show it to the judge that compliance was duly made?

Or would that simply mean that the judge, as a matter of law, reviews the notice, if the judge affirms compliance, the jury will be instructed that compliance is affirmed and not the content because of the confidentiality privilege?

Or could you assert the opposite and say you prove substantial compliance with the notice rule with a redacted version shifting the burden of proof on the servee and there it becomes a potential sanctionable matter if the servee moves to exclude the evidence of sufficient compliance based on an otherwise frivolous claim that there was no compliance?

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    I do not see what a requirement for certified mail service has to do with a privilege for confidential communications. One may send confidential information by certified mail. Whose privilege is being dealt with here, and how are you suggesting that notice requirements might affect it? Please be more specific about your hypothetical scenario. Service documents and similar communication are not normally presented to the jury unless there is a factual dispute over them, and even then such issues are most often resolved by the judge in pre-trial proceedings. Oct 21, 2021 at 18:50
  • Thank you! I tried clarifying, but your comment already gives a fair clue to the answer, I appreciate it!
    – kisspuska
    Oct 21, 2021 at 18:57

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No. Compliance with pre-trial communication requirements or other obligations to attempt to discuss settlement may be disclosed without violating the confidentiality of settlement discussions.

The confidentiality of settlement offers applies to the content of the settlement discussions, not to the fact of having discussed settlement.

Indeed, it is common place for parties to be required to prove that they have attempted mediation, either because it is contractually required as a precondition to suit under a contract, or because a court requires the parties to attempt mediation prior to conducting a trial in order to reduce its case loads.

Similarly, Federal Rule of Civil Procedure 16 specifically authorizes judges at pretrial conferences to ask the parties if they have discussed settlement, and to order the parties to at least make a good faith attempt to discuss possible settlements (although a judge can't order the parties to actually settle). Often a court will require that the parties certify that they have at least attempted to engage in good faith settlement discussions with each other.

Generally speaking, the court will take lawyers at their word that settlement discussions were attempted in good faith without inquiring further.

The fact of settlement discussions can also be disclosed for other purposes that don't disclose their content.

For example, anyone present at a settlement conference could testify that someone else was present at the settlement conference for the purpose of establishing an alibi for someone who is accused of having murdered someone at the time of the settlement conference, or in a dispute over the legal fees that a lawyer charged where someone alleged that the lawyer billed for attendance at a settlement conference despite not actually having done so.

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  • Clarifies all the questions, thank you!
    – kisspuska
    Oct 22, 2021 at 7:06
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Settlement discussions and offers are not (necessarily) confidential

However, they can be (and usually are) without prejudice meaning that while the court can know about them and even know their details, they cannot be taken into account in deciding the case. They can be taken into account in costs orders. For example, if you are suing for $10 and offer to settle for $5 and you prevail in court for $8, you have a very strong argument that the other party should pay most of your costs.

In a jury trial, that will usually mean that the information is not given to the jury because it is not relevant.

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