Excerpts from the California Supreme Court in Rojas v. Superior Court (2004) 33 Cal.4th 407, on mediation confidentiality.
On March 7, 2002, Judge Mohr denied Tenants’ motion. At the hearing on that date, Judge Mohr focused primarily on the requested photographs, explaining: “The plaintiffs say that they need [****10] these photos and there’s no other evidence of the conditions as they were at that time and in those places, and [defendants are] saying these photographs were created for mediation purposes. [**264] They are documents under Evidence Code section 250. They’re clearly protected by the mediation privilege. Judge McCoy so found. They were created pursuant to [the CMO] in the earlier case … . There’s no question they’re covered.” Judge Mohr also concluded that principles governing discovery of evidence subject to a qualified work product privilege do not govern evidence “covered by the mediation privilege.” Finally, Judge Mohr remarked: “This is a very difficult decision … because it could well be that there’s no other way for the plaintiffs to get this particular material. On the other hand, the mediation privilege is an important one, and if courts start dispensing with it by using the … test [governing the work product privilege], … you may have people less willing to mediate.”
[****11] Tenants then sought a writ of mandate in the Court of Appeal. In a split decision, a majority of the Court of Appeal granted relief, concluding that section 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.” As noted above, according to the majority, section 1119 protects mediation materials “in the same manner as the work product doctrine.” Applying work product principles, the majority classified the “raw test data, photographs, and witness statements” as “non-derivative” material that is “ [***648] not protected by section 1119” and is therefore discoverable. By contrast, the majority held, “material solely reflecting an attorney’s ‘ “impressions, conclusions, opinions, or legal research or theories,” ’ is entitled to absolute protection.” Finally, the majority held, “derivative material”—that is, “amalgamation[s] of factual information and attorney thoughts, impressions, [and] conclusions,” such as “charts and diagrams, audit reports, compilations of entries in documents, records and other databases, appraisals, opinions, and [****12] reports of experts employed as nontestifying consultants”—is qualifiedly protected; it is “discoverable only upon a showing of good cause, which requires a determination of the need for the materials balanced against the benefit to the mediation privilege obtained by protecting those materials from disclosure.” Moreover, the majority held, purely factual information included in derivative material—that is, photographs and test data—must, if possible, be removed and produced. The majority thus ordered issuance of a peremptory writ of [*415] mandate directing the trial court to vacate its order denying Tenants’ motion to compel and to apply these principles during an in camera review of the requested documents.
In reaching its conclusion, the majority relied largely on section 1120, subdivision (a), 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 majority reasoned that adopting the trial court’s contrary analysis would “render section 1120 complete surplusage” and would “permit the parties to [****13] use mediation as a shield to hide evidence.”
We then granted the petition for review filed by Coffin and Ehrlich. We also granted the petition for review filed by Deco, which had joined the answer Coffin and Ehrlich filed in the Court of Appeal in opposition to Tenant’s writ petition.
The particular confidentiality provision at issue here is section 1119, subdivision (b), which provides: HN4 “No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, 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.” In turn, HN5 section 250 defines the term “writing” to “mean handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record [****16] thereby created, regardless of the manner in which the record has been stored.” HN6 By statute, “any writing that is inadmissible, protected from disclosure, and confidential under” the mediation confidentiality provisions “before a mediation ends, shall remain inadmissible, protected from disclosure, and confidential to the same extent after the mediation ends.” (§ 1126.)
CA(2) (2) The Court of Appeal’s holding directly conflicts with the plain language of these provisions.
One of the fundamental ways the Legislature has sought to encourage mediation is by enacting several “mediation confidentiality provisions.” ( Foxgate, supra, 26 Cal.4th at p. 14.) As we have explained, [***649] “confidentiality is essential to effective mediation” because it “promote[s] ‘a candid and informal exchange regarding events in the past … . This frank exchange is [*416] achieved only if the participants know that what is said in the mediation will not be used to their detriment through later court proceedings and other adjudicatory processes.’ [Citations.]” ( [****15] Ibid.) “To carry out the purpose of encouraging mediation by ensuring confidentiality, [our] statutory scheme … unqualifiedly bars disclosure of” specified communications and writings associated with a mediation “absent an express statutory exception.” ( Id. at p. 15.)
In Foxgate, we stated that “[t]o carry out the purpose of encouraging mediation by ensuring confidentiality, [our] statutory scheme … unqualifiedly bars disclosure [***656] of” specified communications and writings associated with a mediation “absent an express statutory exception.” ( Foxgate, supra, 26 Cal.4th at p. 15, italics added.) We also found that the “judicially crafted exception” to section 1119 there at issue was “not necessary either to carry out the legislative intent or to avoid an absurd result.” ( Id. at p. 14.) [****37] We reach the same conclusion here; as Judge Mohr observed, “the mediation privilege is an important one, and if courts start dispensing with it by using the … test [governing the work-product privilege], … you may have people less willing to mediate.” Thus, the Court of Appeal erred in holding that so-called derivative material “that is prepared for the purpose of, in the course of, or pursuant to, a mediation” (§ 1119, subd. (b)), is discoverable “upon a showing of good cause.”
Rojas v. Superior Court, 33 Cal. 4th 407, 424, 93 P.3d 260, 271, 15 Cal. Rptr. 3d 643, 655-656, 2004 Cal. LEXIS 6281, *36-37, 2004 Cal. Daily Op. Service 6189, 2004 Daily Journal DAR 8387 (Cal. July 12, 2004)
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