skills/correspondence/references/authority-and-provenance.md

# Correspondence authority and provenance

These sources are a research starting point for a U.S. litigation-correspondence workflow. The ABA Model Rules are professional standards and may differ from the rules adopted in the forum. Federal Rules of Evidence and Civil Procedure apply only when the federal rule and the case's posture make them applicable; state rules, local rules, standing orders, protective orders, and contracts may change the result.

## Professional conduct

- [ABA Model Rule 3.4 — Fairness to Opposing Party and Counsel](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_4_fairness_to_opposing_party_counsel/) prohibits unlawful obstruction or concealment of evidence, frivolous discovery requests, and failure to make a reasonably diligent effort to comply with legally proper discovery. Its [comments](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_4_fairness_to_opposing_party_counsel/comment_on_rule_3_4/) explain why destruction, concealment, witness interference, and obstructive discovery tactics undermine the adversary system; computerized information is included.
- [ABA Model Rule 4.1 — Truthfulness in Statements to Others](https://www.americanbar.org/content/aba-cms-dotorg/en/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_1_truthfulness_in_statements_to_others/) bars knowingly false material statements of fact or law and material omissions needed to avoid assisting a client's crime or fraud, subject to Rule 1.6. Its [comments](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_1_truthfulness_in_statements_to_others/comment_on_rule_4_1/) distinguish ordinary negotiation estimates of price, value, and settlement intentions from misrepresentations and misleading half-truths.
- [ABA Model Rule 4.4 — Respect for Rights of Third Persons](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_4_respect_for_rights_of_third_persons/) prohibits conduct with no substantial purpose other than embarrassment, delay, or burden and methods of obtaining evidence that violate legal rights. Its [comments](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_4_respect_for_rights_of_third_persons/comment_on_rule_4_4/) address inadvertent transmission of paper or electronically stored information and prompt notice to the sender.
- [ABA Model Rule 4.2 — Communication with Person Represented by Counsel](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_2_communication_with_person_represented_by_counsel/) and [Rule 4.3 — Dealing with Unrepresented Person](https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_3_dealing_with_unrepresented_person/) supply important routing checks before direct contact. Verify the adopted version and applicable law before relying on either rule.
- [ABA Formal Opinion 92-363](https://www.americanbar.org/content/dam/aba/publications/YourABA/11_92_363.pdf) concludes that the Model Rules do not categorically prohibit raising possible criminal charges to obtain civil relief when the criminal matter is related, both positions are well-founded, and counsel does not suggest improper influence. That is not a portable national rule: jurisdictions may impose additional professional-conduct restrictions, and substantive extortion, compounding, reporting, or other law may control. Check the governing jurisdiction before drafting any criminal, disciplinary, or regulatory reference.

## Settlement evidence and procedure

- [Federal Rule of Evidence 408](https://uscode.house.gov/view.xhtml?edition=prelim&num=0&req=granuleid%3AUSC-prelim-title28a-node230-article4-rule408) generally excludes compromise offers, acceptances, and conduct or statements during compromise negotiations when offered to prove or disprove the validity or amount of a disputed claim or to impeach by contradiction or prior inconsistent statement. The claim must be disputed as to validity or amount; the rule permits other-purpose use and contains a specialized exception for certain civil government-enforcement negotiations offered in a later criminal case. The [Federal Rules of Evidence page](https://www.uscourts.gov/forms-rules/current-rules-practice-procedure/federal-rules-evidence) is the official currentness portal.
- Rule 408 is not a general privilege or confidentiality agreement. The advisory committee material reproduced in the [readable LII rule-and-notes mirror](https://www.law.cornell.edu/rules/fre/rule_408) explains that otherwise discoverable material does not become immune merely because it appears in settlement negotiations and that admissibility can depend on the purpose for which the evidence is offered. A “without prejudice” or “FRE 408” heading is therefore a status cue, not a complete legal analysis.
- [SEC Rule of Practice 240](https://www.sec.gov/enforcement-litigation/rules-practice/rulesprac042004htm) is a specialized government-enforcement example: an offer of settlement must be proposed pursuant to the rule, include required waivers, be signed by the person making it rather than counsel, and becomes final only through Commission action. Do not generalize its mechanics to private settlements.

## Discovery, conferral, and sanctions

- [Federal Rule of Civil Procedure 26](https://www.law.cornell.edu/rules/frcp/rule_26) sets relevance, nonprivilege, and proportionality limits in Rule 26(b)(1) and requires a reasonable-inquiry certification for discovery requests, responses, and objections under Rule 26(g). The certification covers proper purpose and burden as well as legal and factual support.
- [Federal Rule of Civil Procedure 37](https://www.law.cornell.edu/rules/frcp/rule_37) requires a motion to compel to include a certification that the movant made a good-faith effort to obtain discovery without court action. Local rules and orders commonly impose additional requirements, such as a live conference or a particular certification; check them before relying on correspondence alone.
- [Federal Rule of Civil Procedure 11](https://www.law.cornell.edu/rules/frcp/rule_11) governs signed pleadings, motions, and other papers presented to a court, requiring reasonable inquiry, proper purpose, warranted legal contentions, and factual support or a basis for likely support. A separate Rule 11 motion must be served and ordinarily allows 21 days to withdraw or correct before filing. Rule 11(d) excludes discovery requests, responses, objections, and motions under Rules 26–37, which are principally covered by Rules 26(g) and 37. Ordinary private correspondence is not itself a Rule 11 paper, but a filed letter or exhibit needs court-facing review.
- The [official U.S. Courts Federal Rules portal](https://www.uscourts.gov/forms-rules/current-rules-practice-procedure) is the preferred currentness starting point. Confirm the effective version, local adoption, and judge-specific order.

## Local settlement-conference instructions

- [Moore v. American Commercial Lines, Inc., No. 11-cv-2218 (N.D. Ill.)](https://cases.justia.com/federal-district-courts/illinois/ilndce/1%3A2011cv02218/254152/64/0.pdf) is a court settlement-conference order requiring a concise plaintiff letter describing liability, damages, supporting evidence, and a proposal, followed by a defense response addressing disputed points and an offer. The order limits length, directs the letters to chambers rather than the docket, and requires full settlement authority. It is a local process example, not a universal filing rule.
- [Hern v. MGA Insurance Co., No. 21-cv-352 (D.N.M.)](https://www.govinfo.gov/content/pkg/USCOURTS-nmd-1_21-cv-00352/pdf/USCOURTS-nmd-1_21-cv-00352-3.pdf) similarly requires concise demand and response letters, a pre-conference counsel discussion, confidentiality treatment as directed by the court, and counsel with settlement authority. Read the current order in the actual matter; conference practices vary materially.

## Provenance record to preserve for any exemplar

For each linked example, record the caption, court and jurisdiction, case number, docket or document number, filing date, artifact type, direct URL, host type, public/unsealed/redacted status, and what was actually inspected. Add a short “techniques illustrated” note and a “do not copy” note. A docket description or court opinion that summarizes a letter is not the same thing as the letter itself; say so.

Public filing does not make a document a model of truth, strategy, ethics, or drafting quality. Treat it as one litigant's position in one procedural setting and check the court's result separately. Keep quotations short and attributed; prefer paraphrased technique notes and synthetic language.