The opinion of the court was delivered by: Caiazza, United States Magistrate Judge.
For the reasons stated below, the Defendant Pennsylvania
Turnpike Commission's ("the Commission's" or "the Defendant's")
motion for a protective order (Doc. 23, hereinafter cited as
"Def.'s Mot.") will be granted as consistent with this Order.
The Plaintiffs, members of International Brotherhood of
Teamsters, Local 30 ("Local 30") who are employed by the
Commission (hereinafter "the Plaintiffs"), filed this lawsuit on
October 7, 1999 alleging that the Defendant violated the Fair
Labor Standards Act, 29 U.S.C. § 201, et seq.
("the FLSA"), by "imposing a fluctuating hours method of
compensation on the Plaintiffs." See Pls.' Mem. in Opp'n to
Mot. for Protective Order ("Pls.' Mem.") at 1. On approximately
May 24, 2000, Plaintiffs' counsel noticed the deposition of an
authorized agent of the Commission pursuant to Federal Rule of
Civil Procedure 30(b)(6). See Notice of Dep., attached as Ex.
A to Def.'s Mot ("Dep.Notice"). Among other things, the
Plaintiffs seek to conduct an examination regarding "[t]he
mediation [of] the grievance filed by Roger Haas [("Mr.Haas")]
and Michael Pandolfo heard on May 21, 1999, before Mediator
Michael W. Krchnar, Jr." ("the Mediation"). See Dep. Notice at
The Defendant's motion seeks to preclude the discovery
"through any method . . ., including [the] Plaintiffs' noticed
deposition," of "[a]ll mediation communications and mediation
documents. . . ." See Def.'s Mot. at 112 and Wherefore clause.
As the basis for its request, the Commission urges this Court to
recognize a federal "mediation privilege" precluding discovery
of such communications and documents.
The Plaintiffs explain that the Mediation constituted the
"third step of a grievance procedure under" a "Memorandum of
Understanding" between the Commission and Local 30 that
"applie[d] to the terms and conditions of" the Plaintiffs'
employment. See Pls.' Mem. at 4. Their opposition brief
alleges Mr. Haas testified at his deposition that one of the
Commission's attorneys stated that it "settled out of court"
another lawsuit brought by many of the same Plaintiffs here
because the Commission "found out it was illegal to pay [them]
. . . straight time for overtime." See Pls.' Mem. at 3
(purportedly quoting Dep. Tr. of R. Haas, not attached as
exhibit to Pls.' Mem.).
The Plaintiffs argue that this purported admission is
"extremely significant to [their] claims of retaliation" and to
the Commission's affirmative defense that it acted with a good
faith belief it was not violating the law. See id. They also
assert the purported admission is highly relevant to their claim
that the fluctuating hours method of compensation actually
results in "less compensation for overtime hours than under the
`straight time' method" allegedly referenced during the
Mediation. See id. at 3-4.
In asking this Court to recognize a federal mediation
privilege, the Defendant correctly identifies Federal Rule of
Evidence 501 as authority for the creation of evidentiary
privileges under the federal common law. See Def.'s Mot. at ¶¶
5-6. See generally Pearson v. Miller, 211 F.3d 57, 65-66 (3d
Cir. 2000) (citing and quoting Fed.R.Evid. 501).
Rule 501 provides:
[T]he privilege of a witness, person, government,
State, or political subdivision . . . shall be
governed by the principles of the common law as they
may be interpreted by the courts of the United States
in the light of reason and experience.
The parties agree that the four factors annunciated by the
Supreme Court in Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct.
1923, 135 L.Ed.2d 337 (1996) provide the standards for
determining whether a potential federal evidentiary privilege
should be recognized, and this Court joins the other federal
courts that have focused on these same standards. See, e.g., In
re Air Crash Near Cali, Colombia on Dec. 20, 1995, 959 F. Supp. 1529,
1533-34 (S.D.Fla. 1997) (Jaffee factors provide "a
framework" for analyzing claim of privilege); Folb v. Motion
Picture Indus. Pension & Health Plans, 16 F. Supp.2d 1164, 1171
(C.D.Cal. 1998) (same); cf. generally Pearson, 211 F.3d at
66-67 (quoting and citing general principles annunciated in
The four relevant factors are:
(1) whether the asserted privilege is "rooted in
the imperative need for ...