A federal trial court readily concluded that settlement agreements and settlement negotiations were protected from discovery by a mediation privilege if they took place in mediation, but were not protected if they occurred outside mediation.  The court noted that most courts recognize a federal common law mediation privilege, and that the U.S. Court of Appeals for the Federal Circuit had observed that all states have apparently enacted a mediation privilege, while there is no state consensus regarding a settlement negotiation privilege.  In addition to the mediation privilege, the trial court noted that the local rules of the court and the parties’ agreement to mediate also provided additional confidentiality protection among litigants.
U.S. Ethernet Innovations, LLC v. Acer, Inc., No. C 10-03724 CW (U.S.D.C. N.D. Cal., March 31, 2014)

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