Mediation Message No. 17

MEDIATION CONFIDENTIALITY UPDATED

The very recent case of Rojas v. Superior Court (2004) 33 Cal.4th 407 has held that all writings prepared for a mediation are not discoverable. In Rojas, a lawsuit by the owner of an apartment complex against the apartments’ contractors and subcontractors for water leakage that caused toxic mold was resolved through mediation. The settlement included language that the consultants’ mediation reports and photographs were protected by the trial court’s case management order and Evidence Code sections 1119 and 1152.
In subsequent litigation, the tenants of the same apartment complex sued the buildings’ owner and the contractors and subcontractors for, inter alia, microbe infestations caused by faulty construction. The tenants then sought discovery of all of the attorneys’ and experts/consultants’ files in the underlying case.

The appellate court allowed some of the discovery, finding that it was governed by the same principles as in the work-product doctrine. Accordingly, it held that material solely reflecting the attorneys’ impressions, conclusions, theories and legal research was absolutely protected; that photographs, witness statements and raw test data collected at the buildings were non-derivative material and, therefore, not protected and that amalgamations (such as charts and appraisals) of the above two categories were derivative material and discoverable only upon a showing of good cause.

The Supreme Court in Rojas strongly disagreed with the lower court’s reasoning, holding that the plain language of Evidence Code sections 1119 and 1120, the legislative history of the former and the preference for confidentiality in mediation proceedings led to the inescapable conclusion that all writings, as broadly defined in Evidence Code section 250, prepared for a mediation are sacrosanct. Rojas also said that section 1120 did not become surplusage as a result of the protection given mediation writings in section 1119(b), because section 1120 “prevent[s] parties from using a mediation as a pretext to shield materials from disclosure.” The Court further explained that the mere use of a writing at mediation receives protection only if that object was prepared for the mediation. Consequently, physical samples obtained at the apartment complex in question were not writings and did not come within section 1119(b) but that reports or analyses about these same materials are confidential if prepared solely for mediation. Nor, as Rojas observed, do the underlying facts in witness statements prepared for mediation become inadmissible or protected from disclosure solely because of their inclusion or use at mediation.

From Rojas it is clear that all writings made for, during and pursuant to mediation are not discoverable but, conversely, that confidentiality is not conferred upon facts or a document just because either is referred to or used at mediation. Attorneys, in preparing for mediation, should be aware of this critical distinction; otherwise, subsequent discovery in the same or related litigation could get bogged down in a fight over when and why a writing produced at mediation was prepared and whether the facts contained therein were known independent of or because of the mediation.

Copyright, Michael D. Marcus, July 2004

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