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SHELDONE v. PENNSYLVANIA TURNPIKE COM'N

July 17, 2000

PATSY B. SHELDONE, ET AL., PLAINTIFFS,
V.
PENNSYLVANIA TURNPIKE COMMISSION, DEFENDANT.



The opinion of the court was delivered by: Caiazza, United States Magistrate Judge.

ORDER

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.

BACKGROUND

A. Procedural History

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.

B. The Mediation

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.

ANALYSIS

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.

Id.*fn1

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 useful 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 Jaffee).

The four relevant factors are:

(1) whether the asserted privilege is "rooted in the imperative need for ...

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