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July 11, 1995

FRANK LO BOSCO, Plaintiff,

The opinion of the court was delivered by: ALFRED M. WOLIN

 This matter is opened before the Court upon the plaintiff's appeal of Magistrate Judge Pisano's ruling of November 3, 1994 granting defendant's in limine motion to admit certain letters from plaintiff to defendant into evidence over plaintiff's objections under Federal Rule of Evidence 408. This matter has been decided upon the written submissions of the parties pursuant to Federal Rule of Civil Procedure 78. For the reasons given below, the Court will vacate the decision of Judge Pisano. The Court will order that the letters are admissible under Rule 408, but only to the extent relevant under the "other purposes" exception to the Rule.


 The facts in this matter have been recently set forth in this Court's Opinion of this date addressing defendant's motion for summary judgment. They will be only briefly summarized here. This dispute arises from the ruins of a relationship between plaintiff Lo Bosco, defendant Luther Woo and defendant Mayling Woo. Lo Bosco is an attorney. Luther Woo is a wealthy businessman who controls defendant Kure Engineering Limited. Mayling is Luther's daughter. Lo Bosco alleges that Mayling and Luther Woo induced him to leave his job as an associate at the New Jersey law firm of Crummy, Del Deo, Dolan, Griffinger and Vecchione by fraudulent promises of employment and investment opportunity. It is alleged that, from January to September of 1990, Lo Bosco, Mayling and Luther Woo operated as an investor group pursuant to an agreement between them. Lo Bosco and Mayling contributed expertise and effort in searching for prospective corporate acquisition targets. Luther Woo was to provide the funds. In August 1990, Lo Bosco and Mayling were married.

 In September of 1990, Lo Bosco alleges, Luther Woo breached their agreement when he refused to fund the purchase of a company Lo Bosco found and wished to purchase. In "mid-1991," Lo Bosco threatened to sue Luther and Mayling for breach of contract and for inducing him to leave Crummy, Del Deo. Plaintiff's Brief at 12. In June 1991, Mayling filed a petition for divorce.

 It was at this point that the letters that form the subject of this motion were written. These handwritten documents are appended to the Affidavit of James H. Aibel submitted in opposition to this appeal. In emotional language, Lo Bosco sought a reconciliation with Mayling. He takes full responsibility for the falling out of the parties. He speaks in glowing terms of Luther Woo's and his conduct throughout the affair. It requires little reading between the lines to understand that Lo Bosco is promising to abandon his contract and tort claims against his spouse and father-in-law. Thus, read generously, it constitutes an offer to drop the lawsuit if it will effect a reconciliation of the couple.

 In fact, there was a reconciliation that lasted about three months. However, in June of 1992, the Circuit Court of Cook County, State of Illinois awarded Mayling a judgment of dissolution of the marriage. Lo Bosco successfully contended that the court lack personal jurisdiction over him, and so the judgment was entered in default. In June of 1993, plaintiff filed the complaint in this action.

 In the in limine motion before Judge Pisano, defendant sought a ruling that the letters were admissible as admissions of a party. Plaintiff argued that they were covered by the marital communication privilege, and by Federal Rule of Evidence 408 that protects statements made to effect a settlement of a claim. The Rule 408 argument was premised on the theory that the letters were an attempt to compromise the impending divorce proceeding.

 Judge Pisano ruled that the letters were not covered by the marital communication privilege, because they were within the exception to that rule for communications that relate to a dispute between the parties. Transcript of Hearing on October 26, 1994 before Judge Pisano ("Tr.") at 39. Judge Pisano found that Lo Bosco's allegations of fraud had put Mayling's intentions, his own state of mind and the reasonableness of his reliance into issue. Tr. at 34, 38.

 Then Judge Pisano turned to the argument under Rule 408. The Judge stated:

The intention of the rule is to protect parties from having bona fide settlement communications held against them within the context of the matter which was the subject of the settlement conversations. . . . It may very well be that these communications, if in fact one assumes that they were letters written with the intention of proposing a compromise or a settlement, that they may have been inadmissible for that reason within the context of the divorce action. But they certainly are not inadmissible as offers of compromise within the context of this action.
. . .
If indeed intended to be proposals for compromise or settlement, . . . these communications were clearly not made within the context of this dispute, the dispute that ...

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