Rojas: Writings Prepared for Mediation Are Confidential
LACBA Update, September 2004

By Judge Michael Marcus (ret.), vice chair, LACBA Professional Responsibility and Ethics Committee. Marcus is a mediator and arbitrator with ADR Services, Inc. in Los Angeles. The opinions expressed are his own.

While Foxgate Homeowners' Association v. Bramalea California, Inc. (2001) 26 Cal.4th 1 held that "confidentiality is essential to effective mediation" (Id. at p.15),1 the scope of that confidentiality as to writings used in mediations was not discussed. Rojas v. Superior Court (2004), 33 Cal.4th 407, answered that issue by holding that all writings prepared for and during a mediation are non-discoverable.

In Rojas, the owner of an apartment complex sued the apartments' contractors and subcontractors for water leakage that allegedly caused toxic molds. The matter was concluded through mediation and a subsequent settlement, which included language that the consultants' mediation reports and photographs were protected by the trial court's case management order as well as Evidence Code Secs. 1119 and 1152.2 (Sec. 1119(b) states generally that "No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation...is admissible or subject to discovery..." Sec. 1152 renders inadmissible offers to compromise made during negotiations.) In subsequent litigation, the tenants of the same apartment complex sued the buildings' owner and the contractors and subcontractors for microbe infestations caused by faulty construction and for concealment of those defects. The tenants then sought discovery of all of the attorneys' and experts/consultants' files in the underlying and settled case.

Although the trial court held, in effect, that mediation confidentiality prevented the discovery of the sought-after items, the appellate court disagreed, finding that discovery was governed by the same principles as set forth in the work-product doctrine of Code of Civil Procedure Sec. 2018. 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, which involves a balancing of the need for the materials and the purposes served by mediation confidentiality. The appellate court arrived at this result by essentially finding that Sec. 1119 is qualified by Sec. 1120(a), which provides that "Evidence 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 California Supreme Court in Rojas strongly disagreed with the lower court's reasoning, finding that the plain language of Secs. 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 Sec. 250, prepared for a mediation are sacrosanct.3 The opinion also noted that Sec. 1126 gives continuing confidentiality to writings after a mediation has ended.

Rojas also said that Sec. 1120, which the lower court had relied upon to allow for the discovery of mediation reports, did not become surplusage as a result of the protection given mediation writings in Sec. 1119(b) because Sec. 1120 "prevent[s] parties from using a mediation 'as a pretext to shield materials from disclosure.'" (Id. at p. 423, citing the California Law Revision Commission.) The court further explained that the mere use of a writing at mediation, whether it be a letter, report, or witness statement, 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 Sec. 1119(b), but, at the same time, 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. (Id. at p. 423, n. 8.)

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 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.

1 Foxgate reversed a trial court's imposition of Code of Civil Procedure Sec. 128.5 sanctions as to a party based upon a mediator's report to the court that the party had been uncooperative because that report contravened Evidence Code Sec. 1121, which provides that a mediator may not submit a report or recommendation to a court or adjudicative body concerning a mediation, other than a report mandated by law that does no more than state whether an agreement has been reached.

2 All further statutory references are to the Evidence Code.

3 Sec. 250 defines writings as "handwriting, typewriting, printing, photostating, photographing, 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."