The opinion of the court was delivered by: Herndon, Chief Judge
Before the Court is Defendants' Objections and Motion to Strike BPI's Summary Judgment Evidence (Doc. 249), to which plaintiffs BPI Energy Holdings, Inc. and BPI Energy, Inc. ("Plaintiffs" or collectively, "BPI") have responded in opposition (Doc. 250) and Defendants thereafter replied (Doc. 251). Defendants assert several objections regarding certain evidentiary exhibits used by BPI in support of its opposing Response (Doc. 246) to Defendants' Motion for Summary Judgment (Doc. 238). As set forth in this Order, Defendants' request shall be granted in part and denied in part.
In sum, Defendants request that the Court strike Exhibits 4, 5, 6, 14, 15 and paragraph 5 of Exhibit 16 of Plaintiff's Response (Doc. 246) on the grounds that the use of such evidence not only violates the terms of the Parties' confidentiality agreements, but also because it violates FEDERAL RULE OF EVIDENCE 408.
Defendants also seek to strike the Affidavit by David A. Giannini (Doc. 246, Ex. 18), arguing that BPI failed to disclose him as a potential fact or expert witness and also move to strike paragraphs 5 through 7 of his Affidavit as improper expert opinion testimony. Defendants further seek to strike paragraphs 4, 5, 6 and 8 of the Affidavit of Alan Lolie (Doc. 246, Ex. 17), arguing that they constitute irrelevant and improper legal conclusions. Lastly, Defendants seek to strike paragraph 5 and the last line of paragraph 3 of the Affidavit of James G. Azlein (Doc. 246, Ex. 16), based on the argument that paragraph 5 relates to alleged settlement discussions and the last line of paragraph 3 is speculative and lacks foundation. The Court will address each item in turn.
A. Evidence Stemming From Settlement Negotiations
Defendants claim the following exhibits submitted to support BPI's opposing Response to Defendants' Motion for Summary Judgment (Doc. 246) should be stricken because they contain alleged statements and conduct made during settlement negotiations between the Parties, which Defendants argue is prohibited by FEDERAL RULE OF EVIDENCE 408 and in violation of the terms of the Parties' two confidentiality agreements. Defendants identify BPI's challenged exhibits as follows:
Exhibit 4 - a memorandum drafted by BPI's in-house counsel about the dispute and scheduling a confidential settlement meeting (Doc. 246, Ex. 4);
Exhibit 5 - notes taken by a Drummond representative (one of the Defendants) at the September 2006 settlement meeting (Id., Ex. 5);
Exhibit 6 - a letter from BPI rejecting a proposed revised lease agreement sent in furtherance of the Parties' discussions (Id., Ex. 6);
Exhibit 14 - a proposed revised lease agreement from Defendants to BPI, sent in furtherance of the Parties' discussions (Id., Ex. 14);
Exhibit 15 - notes taken by a Drummond representative at the February 2007 settlement meeting (Id., Ex. 15); and Paragraph 5 of Exhibit 16 - Affidavit of James Azlein which purports to relay statements allegedly made during the first settlement meeting by Gary Drummond (Id., Ex. 16). (Doc. 249, p. 2.)
It appears that the Parties engaged in two separate settlement meetings prior to the filing of this lawsuit, the first occurring on September 11, 2006 (Doc. 249, Ex. A), the second on February 9, 2007 (Id., Ex. B). For each meeting, the Parties entered into what they titled a ...