Metropolitan News-Enterprise


Tuesday, July 13, 2004


Page 1


State High Court Takes Broad View of Mediation Privilege

Unanimous Ruling Holds ‘Pure’ Evidence Immune From Discovery


By KENNETH OFGANG, Staff Writer/Appellate Courts


Materials developed for use in mediation, including such “pure” evidence as photographs depicting conditions that are the subject of a lawsuit, are privileged, the California Supreme Court ruled yesterday.

In a unanimous decision, the court reversed a decision of this district’s Court of Appeal, which held that the privilege did not apply to photographs and other “nonderivative” evidentiary materials and that derivative materials were discoverable upon a showing of good cause.

Evidence Code Sec. 1119(b)’s privilege for writings “prepared for the purpose of, in the course of, or pursuant to, a mediation” is absolute and applies to photographs, witness statements, raw test data, and any other evidence developed in anticipation of its use in mediation, Justice Ming Chin wrote for the court.

The case before the high court grew out of a suit by tenants at a Los Angeles-area  apartment complex, who claimed that their landlords and a builder conspired to prevent them from learning that water leakage due to construction defects had produced toxic molds and other unhealthy conditions. 

Underlying Suit

The tenants were seeking to discover materials related to an earlier lawsuit in which the landlord sued the builder, then settled following mediation. The tenants’ counsel claimed the discovery was necessary because much of the relevant evidence because unavailable once the landlords undertook to remedy the conditions, prior to the tenants learning about them.

But Los Angeles Superior Court Judges Charles McCoy and Anthony Mohr ruled that much of what the plaintiffs were seeking was protected from discovery by Sec. 1119.

McCoy ruled that any document prepared on or after the date that the trial court in the underlying action issued a case management order providing for mediation was prepared “for the purpose of, in the course of, or pursuant to” the mediation and thus undiscoverable.

Documents prepared earlier, the judge said, were discoverable only if subject to discovery before the case management order was rendered and not prepared for mediation. McCoy specifically ruled that compilations of evidence, which he reviewed in camera, were privileged but left open the question of whether specific items listed in the compilation might be discoverable.

The case was later assigned to Mohr, who was called upon to rule on a motion to compel discovery of photographs, videotapes, recorded statements of current and former tenants, results of ambient air testing undertaken by the landlords during the previous suit, and “raw” scientific data collected during that action.

In denying the motion, Mohr acknowledged that he had to make “a very difficult decision...because it could well be that there’s no other way for the plaintiffs to get this particular material.” But the mediation privilege was important, he said, and could not be breached because if it could be “you may have people less willing to mediate.”

Chin, writing for the high court, agreed. The Court of Appeal’s ruling that “nonderivative” materials are not covered, he  said, “directly conflicts with the plain language” of the relevant statutes.

Broad Definition

Sec. 1119, he noted, incorporates Sec. 250’s broad definition of “[w]riting,” which includes photographs and other items created by “recording upon any tangible thing any form of communication or representation.”

He also cited the legislative history behind the 1997 adoption of the mediation confidentiality statutes. In proposing the legislation, Chin explained, the California Law Revision Commission expressly stated that “[r]eports and analyses that necessarily disclose mediation communications may be admitted or disclosed only upon satisfying the general rule” that waivers of the privilege be agreed to by all parties to the mediation.

Chin went on to reject the notion of a “good cause” exception to the privilege, saying if the Legislature had intended to create one, it would have done so explicitly.

“[I]n reaching [its] conclusion [that an exception for ‘good cause’ exists], the Court of Appeal borrowed principles governing discovery of work product,” the justice explained. “However, discovery of work product is expressly governed by statute...Thus, the Legislature clearly knows how to establish a ‘good cause’ exception to a protection or privilege if it so desires.  The Legislature did not enact such an exception when it passed Evidence Code section 1119 and the other mediation confidentiality provisions.”

Chin explained in a footnote that while the tenants reached a settlement with the defendants, the issue is not moot because similar discovery requests were served on the landlords by co-defendants who filed cross-claims. In addition, the justice wrote, “the continuing public importance” of the issue justifies the court’s exercise of its discretion to decide it on the merits.

The case was argued in the high court by Bruce M. Brusavich of Torrance’s Agnew & Brusavich for the plaintiffs; Robert C. Risbrough of the Santa Ana firm of Watten, Discoe, Bassett & McMains for the landlords, Julie Coffin and Robert Ehrlich; and Mark H. Herskovitz of the Pasadena firm Friedenthal, Cox & Herskovitz for Deco Construction Corporation.

The case is Rojas v. Superior Court (Coffin), 04 S.O.S. 3553.


Copyright 2004, Metropolitan News Company