Changes to an Affidavit

[Janus]

though the emails were far from being cooperative offers to settle/negotiate and rather "it's our way or the highway" statements.

Those will never be relevant.

All that matters if you are hoping to show a lack of cooperation are the offers to settle.

Hopefully you have made many severable offers to settle. If they have not made any offers to settle, then they will look uncooperative. It does not matter what mean things they said to you in private during negotiations.

[kleyopattra]

I will go ahead and remove the exhibits pertaining to the opposing parties "without prejudice" emails/communication, though the emails were far from being cooperative offers to settle/negotiate and rather "it's our way or the highway" statements.
Maybe I can seek permission to use them later if the case drags on, but will keep it kosher for now to avoid costs.
Thank you all for your kind feedback and great suggestions!

[Kinso]

I didn’t say to follow opposing counsel’s position. I said OP should get their own advice from a lawyer and make a decision. They should not waste the court’s time with this.

I’m pretty sure opposing counsel is correct on this one, but I couldn’t know for sure unless I saw the letters.

Rule 18(8) says offers to settle (and by extension genuine without prejudice materials) are not to be filed into the continuing record. It does not say the Judge shall disregard. OP risks costs.

[LovingDad1234]

I'm rather surprised you have recommended following it. I would just keep the without prejudice exhibits and respond to the opposing counsel's request with "I'm sorry, but the materials have already been filed."?

Opposing counsel is correct to advise to remove "Without Prejudice" conversations from affidavit. The purpose of without prejudice conversations is to try to negotiate on a "without prejudice basis" in efforts to get to a settlement and avoid further litigation. It cannot be held against the person later on in any way.

You are risking wasting a court appearance by having the judge give you back your package and telling you to re-work the material.

[CoolGuy41]

Prepare a new affidavit without reference to the without prejudice materials.

If you want a legal opinion hire a lawyer for that purpose only. The Judge isn’t there to offer legal advice, and you’ll blow a perfectly good attendance wasting it on that issue.

Is the opposing counsel there to provide legal advice to kleyopattra?? Because it sounds like that is what is happening here and I'm rather surprised you have recommended following it. I would just keep the without prejudice exhibits and respond to the opposing counsel's request with "I'm sorry, but the materials have already been filed." Can the court not proceed with the hearing and just disregard the without prejudice evidence?

[Kinso]

Prepare a new affidavit without reference to the without prejudice materials.

If you want a legal opinion hire a lawyer for that purpose only. The Judge isn’t there to offer legal advice, and you’ll blow a perfectly good attendance wasting it on that issue.

[seeker101]

Better yet, if there is a case conference scheduled before any motion, then say to OC you'd want to the get the opinion of the case conference judge first before agreeing to striking anything from the affidavit.

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[seeker101]

In that case, it may be quite cumbersome to coordinate with opposing counsel and court staff to make changes to an already filed affidavit (not sure but way need a notice of withdrawal or something).

Instead, what I would propose to the opposing counsel is this: not make any changes to the existing affidavit at this time and suggest that whenever the parties are in court, make a joint request to the judge to strike the relevant paras/exhibits from the affidavit.

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[kleyopattra]

Thanks for your reply! Yes, the Affidavit has already been filed and served.

[seeker101]

Have you already filed the affidavit in the court?

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[kleyopattra]

In my affidavit to support my motion to change, I included "without prejudice" information. I included the respondent party's lawyer's emails, because they obviously support my case. However, the respondent party's lawyer is asking me to remove them.
Should I, re-submit a new Affidavit and remove references to the Exhibits that pertain to the lawyer's emails (then swear, and file)?
Or should I go to court and have them cross off the "without prejudice" emails and re-swear, file the existing Affidavit?