## Facts

- Employees of the Pennsylvania Turnpike Commission, represented by a union local, brought a collective action under the Fair Labor Standards Act (FLSA) challenging the Commission’s overtime compensation method.
- A grievance concerning overtime calculations proceeded under a labor memorandum of understanding and reached mediation on May 21, 1999.
- Plaintiffs alleged that, during the mediation, Commission counsel stated the Commission had previously settled a similar lawsuit after learning the overtime pay method was illegal.
- In the FLSA case, plaintiffs noticed a Rule 30(b)(6) deposition seeking testimony about the mediation.
- The Commission moved for a protective order to bar discovery, by any method, of all mediation communications and mediation documents.

## Issues

1. Whether Federal Rule of Evidence 501 supports recognition of a federal common-law mediation privilege that categorically shields mediation communications and documents from discovery in a federal-question case.
2. If no categorical privilege exists, what limits, if any, should be imposed on discovery of mediation communications under existing discovery and evidence rules.

## Decision

- The court declined to recognize a federal common-law mediation privilege under Rule 501 on the record presented.
- The court denied the Commission’s request for a blanket prohibition on discovery of mediation communications and documents.
- The court permitted only limited, case-specific protection consistent with the order, relying on existing mechanisms rather than a new categorical privilege.

## Legal Principles

- Federal common-law privileges under Federal Rule of Evidence 501 are disfavored and are recognized only when justified by a public good that outweighs the evidentiary cost of excluding probative information.
- In assessing whether to create a new privilege, courts consider factors associated with Supreme Court privilege analysis, including necessity, public benefit, evidentiary cost, and the degree of consensus reflected in state law.
- The absence of a uniform, broadly accepted state-law privilege and the federal practice of managing mediation confidentiality through rules and orders weigh against creating a new federal mediation privilege.
- Mediation confidentiality concerns can be addressed through existing tools, including Rule 26(c) protective orders, contractual confidentiality provisions, local ADR rules, and Federal Rule of Evidence 408 (which limits certain uses of settlement communications but does not create a discovery privilege).
- When mediation communications are sought, courts may use case-specific balancing and tailored protections rather than categorical exclusion.

## Conclusion

The court refused to create a federal mediation privilege barring discovery of mediation communications in an FLSA action, holding that confidentiality interests should be protected through existing rules and narrowly tailored protective orders rather than an absolute common-law privilege.


Sheldone v. Pennsylvania Turnpike Comm’n, 104 F. Supp. 2d 511 (W.D. Pa. 2000)