Jenner & Block

"Protecting Proffer Session Statements from Being Used in Civil Litigation," American Bar Association's Committee on Pretrial Practice & Discovery Newsletter

Spring 2009
Partner Howard Suskin and Associate Andrew F. Merrick discuss that among potential consequences when a client is the subject of a criminal investigation, “statements made in discussions with the prosecution pursuant to a proffer agreement ultimately may be the subject of a discovery attempt and used in subsequent civil proceedings.” According to the authors, although there are many benefits to participating in plea negotiations, defense counsel should be mindful that other parties may subsequently attempt to use such statements in civil litigation, and that “it behooves defense counsel to try to keep those statements protected from disclosure” by invoking rules governing settlement negotiations.