Low, Ball & Lynch’s

WEEKLY LAW RESUME

July 22, 2004 Issue      By: Raymond Coates

Civil Procedure - Mediation - Confidentiality

Genoveva Rojas v. Superior Court

California Supreme Court

(June 12, 2026)

Mediation is a confidential process designed to settle cases.  This case considered whether any materials produced at the mediation fall outside the confidentiality protections.

Julie Coffin sued Deco Construction Corporation (Deco) alleging water leakage due to construction defects had produced toxic molds in an apartment complex she owned.  In the course of the litigation, Coffin prepared a preliminary defect list, a report of air testing, documents related to demolition and replacement of drywall and ceilings, application of antimicrobial agents, and plumbing repairs.  As a result of mediation, the litigation settled.

Thereafter, several hundred tenants of the complex filed suit against Deco, Coffin and others alleging health problems.  In this litigation, the tenants served requests for production of all documents generated in the prior litigation between Coffin and Deco.  Coffin and Deco opposed the demand, arguing that some of the documents were prepared for mediation and thus were not discoverable.  Despite several attempts and motions, the trial court refused to allow any documents produced for the mediation to be subject to discovery.

The tenants sought a writ of mandate in the Court of Appeal.  The Court of Appeal ruled that the mediation privilege protected only the substance of the mediation and not evidence produced at the mediation.  Thus, raw test data, photographs and witness statements were subject to discovery.  It further held material developed from the evidence was discoverable upon a showing of good cause.  The Court of Appeal ordered the trial court to conduct a review of the material to determine what was subject to production.  A petition for review filed by Coffin and Deco was granted by the Supreme Court.

The Supreme Court reversed the Court of Appeal.  The Court noted that mediation is encouraged as a means of resolving litigation.  In order to encourage mediation, the Legislature has enacted several mediation confidentiality provisions.  Section 1119 of the Evidence Code provides broad protection for material prepared for mediation.  The Supreme Court stated this protection applied to photographs, witness statements and raw test data reports.  These items all fall within the scope of documents protected by the mediation privilege.  Section 1120 exempts from protection documents used at the mediation, but not prepared for the purpose of or in the course of or pursuant to a mediation.  This prevents mediation from being used as a pretext to shield material from disclosure.

The Court stated its interpretation was consistent with the legislative history of the statute.  Furthermore, any other ruling would be inconsistent with the overall purpose of mediation.  The Court concluded that the Court of Appeal erred in holding that photographs, videotapes, witness statements and raw test data that were prepared for the purpose of the mediation were not protected.  The Court of Appeal also erred in holding that charts, diagrams, information compilation, expert opinions and reports were discoverable upon a showing of good cause.

The Court noted there are exceptions to these rules, including Section 1122, which permits discovery of protected material prepared by fewer than all of the mediation participants if they agree to disclose the documents and the disclosure would not reveal anything said or done during the course of the mediation.  There is also an exception for discovery of protected material if all persons who participate in the mediation agree to it.  There also are exceptions for settlement agreements made or prepared pursuant to the mediation.  These narrow exceptions showed no evidence of a legislative intent to create any additional exceptions for "good cause."

The Court stated the mediation privilege was important, and people would be less willing to mediate if material prepared for a mediation could be discovered upon a showing of good cause.  The judgment of the Court of Appeal was therefore reversed.

COMMENT

This opinion was issued by the Supreme Court even though the case settled on appeal.  The plaintiff's bar has vowed to try and change the decision through legislative action.

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