March 26, 2018 Articles

Federal Mediation Privilege—How Far Does It Go?

By Sheila J. Carpenter

Acqis, LLC v. EMC Corp., No. 14-cv-13560 (D. Mass. June 29, 2017) (Burroughs, J.), is the most recent case adopting a federal common law mediation privilege and a convenient starting point for attorneys faced with the issue of what documents are covered by such a privilege. In Acqis, a patent case, the disputed documents related to mediations that took place in other lawsuits in other courts; they involved plaintiff Acqis, LLC but not defendant EMC Corporation. EMC sought documents related to these settlement discussions and Acqis asserted that they were covered by a mediation privilege. EMC agreed that documents created for use in the mediations themselves were privileged. The mediations in question apparently failed but there were settlement discussions after the mediations were terminated. Documents relating to the later discussions were the center of the dispute.

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