In ACQIS, LLC v. EMC Corp., No. 14-cv-13560 (D. Mass. June 29, 2017), the court applied and described the contours of the federal mediation privilege.  In this patent infringement matter, defendant EMC sought discovery of certain settlement communications between plaintiff and third parties; plaintiff objected, asserting the federal mediation privilege.  The court noted that neither the First Circuit nor any court in the District of Massachusetts had addressed the mediation privilege, but that several district courts in other Circuits have recognized the mediation privilege under federal common law.  The court explained that the precise scope of the privilege remains unclear.  The court held that the federal mediation privilege protects only communications made in direct connection with a formal mediation, specifically, “communications to which a mediator was personally privy, communications that were directly made at a mediator’s explicit behest, or communications undertaken with the specific intent to present them to a mediator.”  The court explained that the privilege does not apply to settlement negotiations in which a mediator is not actively and directly involved, such as negotiations that follow formal mediation, even when the negotiations involve information learned during the mediation or where they occurred in light of the mediation.