The California Supreme Court has held that disclosure of written materials, including witness statements, reports, analyses of test data and photographs, prepared for or used in a mediation cannot be compelled in subsequent litigation and that there are no good cause exceptions to this rule. Rojas v. Superior Court, 33 Cal.4th 407 (2004).

The decision is important because in some contexts, such as the toxic mold claims at issue in Rojas, evidence prepared for and used at a mediation is otherwise unavailable to subsequent litigants. This was the case in Rojas because the mold had been abated as part of a prior lawsuit and the only photographic evidence of and testing results from the mold were prepared for and used in the mediation that resolved the prior lawsuit. Thus, the test results and photographs were protected from discovery by the mediation privilege.


Facts

In 1996, the owner of a 192-unit apartment complex in Los Angeles sued the contractor and subcontractors that constructed the building. The owner alleged the building was defective because it was leaking water that caused toxic mold. The trial court entered a case management order in July 1998 providing that "[e]vidence of anything said or any admission made by attorneys, parties, principals, consultants, or others in the course of any 'mediation proceeding'... and any document prepared for the purpose of, or in the course of, or pursuant to any mediation proceeding shall be deemed privileged pursuant to Evidence Code §1119 and shall not be admissible as evidence at trial or for any purpose prior to trial."

Mold abatement work was performed on the building and completed in late 1998. The case then settled in mediation in April 1999. The settlement agreement provided: "[T]hroughout this resolution of the matter, consultants provided defect reports, repair reports, and photographs for informational purpose which are protected by the Case Management Order and Evidence Code §§1119 and 1152, and it is hereby agreed that such materials and information contained therein shall not be published or disclosed in any way without the prior consent of plaintiff or by court order."

In August 1999, several hundred tenants of the apartment complex sued the owner and other parties involved in development and construction of the complex. The tenants alleged that defective construction resulted in water leakage, which caused toxic mold to develop, resulting in numerous health problems for tenants; that the owner and other defendants conspired to conceal the defects; and that the tenants did not become aware of the defects until April 1999.

In discovery, the tenants sought photographs, test results and witness statements and other writings that had been prepared for and used in the mediation. The tenants contended that these photographs and writings were the only evidence of conditions in the building during the toxic mold infestation.

The defendants refused to produce the materials on grounds of the mediation privilege in §1119, and the tenants moved to compel. The trial court judge denied the motion to compel. He found that the photographs and writings were protected by the mediation privilege set out in §1119. It provides in part: "No writing, as defined in [Evidence Code] Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation. is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given."

The trial judge acknowledged that it was "a very difficult decision... because it could very well be that there's no other way for the plaintiffs to get this particular material." But, the trial court held, "the mediation privilege is an important one, and if courts start dispensing with it... you may have people less willing to mediate."

The tenants then sought a writ of mandate to reverse the trial court order, and the Court of Appeal issued one. It held that attorney work product doctrine principles governed the application of §1119. Thus, the "raw test data, photographs, and witness statements" were non-derivative material that was not protected by §1119. However, the Court of Appeal held, derivative material consisting of "amalgamations of factual information and attorney thoughts, impressions, and conclusions" such as charts, diagrams, reports, compilations, appraisals and opinions were qualifiedly protected and subject to discovery only upon a showing of good cause. Thus, the Court of Appeal held that §1119 does "not protect pure evidence" but protects only "the substance of mediation, i.e., the negotiations, communications, admissions, and discussions designed to reach a resolution of the dispute at hand."

The Court of Appeal cited Evidence Code §1120, which provides that "[e]vidence otherwise admissible or subject to discovery outside of a mediation. shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation.." The Court of Appeal was concerned that refusing discovery "would render section 1120 surplusage" and would "permit the parties to use mediation as a shield to hide evidence."


The Holding

The California Supreme Court overturned the Court of Appeal decision. It first outlined the policy reasons behind the mediation privilege in §1119. It wrote that the Legislature has sought to encourage mediation by enacting several mediation confidentiality provisions because "confidentiality is essential to effective mediation" since it "promote[s] 'a candid and informal exchange regarding events in the past.... This frank exchange is achieved only if participants know that what is said in the mediation will not be used to their detriment through later court proceedings and other adjudicatory processes.' "

The Supreme Court concluded that §1119's protection of mediation writings is unqualified, and there are no good cause exceptions in §1119. Thus, the Supreme Court concluded that the Court of Appeal's analysis conflicted with the statute.

The Supreme Court also reviewed the legislative history of §1119. It found that the Law Revision Commission had considered what to do when a photo is made for a mediation and cannot be replicated in later litigation because the building has been razed or an injury has healed. The Supreme Court found that the Law Revision Commission recommended that no exception be made in §1119 for this circumstance and that none was enacted by the Legislature. The Supreme Court concluded that the Commission "chose language expressly designed to give a mediation participant who takes a photograph for purpose of the mediation control over whether it is used in subsequent litigation, even when another photo cannot be taken."

The Supreme Court did catalogue some of the evidence that remains discoverable and admissible despite the mediation privilege:

	Writings that were prepared for reasons other than for use at mediation but that later were used at a mediation are not protected. Only writings prepared especially for a mediation are protected.
	Section 1119 applies only to "writings" as defined in Evidence Code §250. Physical objects such as actual physical samples collected from the apartment complex are not covered by the privilege. Rather, only recorded analyses of those samples "prepared for the purpose of, in the course of, or pursuant to, a mediation" are protected.
	While witness statements prepared for mediation are protected, the facts in the witness statements are not protected. Rather, they come under the "otherwise admissible" exception in §1120. "Otherwise..., parties could use mediation 'as a pretext to shield materials from disclosure.' "
	Evidence Code §1122 (a) (2) allows a mediation participant to use in later litigation writings that it prepared for a mediation so long as the writings do not reveal anything said, done or admitted during the mediation.

The Supreme Court expressly did not address the tenants' contention that many of the withheld documents in fact had not been prepared as part of a mediation.

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