MEDIATION CONFIDENTIALITY AFTER ROJAS:
AN UNINTENDED SHIELD?
Scott L. Gilmore, Attorney & Mediator
Hill, Farrer & Burrill LLP
In my practice as a mediator I explain the concept of mediation confidentiality by reference to what I call the Vegas Rule: “What happens here stays here.” Following the recent decision of the California Supreme Court in Rojas v. Superior Court of Los Angeles County (July 12, 2004) 33 Cal. 4th 407, I may need to expand my analogy to include what occurs on the way to Vegas.
In Rojas, the Supreme Court broadly interpreted the scope of the mediation confidentiality provisions contained within Evidence Code § 1119(b). Some suggest that the breadth of the Rojas opinion may strike a serious blow to the mediation process and deter the use of this form of alternative dispute resolution. I consider these concerns to be an overstatement of the impact of Rojas. However, an understanding of the background of the Rojas opinion and the steps a litigation practitioner should take to avoid the misuse of mediation confidentiality is essential for attorneys involved in the mediation process.
The Rojas case actually arose out of a mediation which had occurred in a prior action. In the first action, the owner of an apartment complex in Los Angeles sued both its contractor and certain of its subcontractors who had built the three building complex. The owner claimed that water leakage due to defective construction had produced toxic molds. As is typical in a complex construction case, the trial court issued a Case Management Order (“CMO”), which included the requirement of mediation between the parties. The CMO also included a provision that Evidence Code Section 1119 would apply to the mediation.
The owner had prepared a preliminary defect list to identify the structural defects and the mold infestation. The owner had also performed air testing on one of the three buildings at issue which had been closed for mold abatement. Ultimately, the first case settled “as a result of mediation” (according to the opinion of the Supreme Court). Apparently, the defect list and summaries of the plaintiff’s test results were submitted in the “mediation.” The settlement agreement included a restatement of Evidence Code §1119 and a very broad protection provision as to all documents introduced during the course of the mediation.
The second case (which was the basis of the Rojas opinion) was filed by “several hundred tenants” of the apartment buildings within months of the settlement of the first case. The defendants in Rojas included the various construction entities and the owner of the building (i.e., both sides in the first action) along with others who had been involved in the development and construction of the project not included in the first case.
During the course of discovery in the second case, the tenants sought the production of numerous documents and related materials from the first case, including photographs and videotapes, witness statements, “results” of destructive testing and all “raw data” collected during that action, such as air samples. When this request was objected to, the tenants moved to compel and the trial court denied the motion, finding that the production of the requested materials was precluded by the mediation privilege.
From this ruling, the tenants sought a writ of mandate in the Court of Appeal. In a 2-1 decision the Court of Appeal granted the writ, concluding that section 1119 did not protect “pure evidence,” but only protected “the substance of mediation, i.e., the negotiations, communications, admissions, and discussions designed to reach a resolution of the dispute at hand.” The majority determined that Section 1119 was to be applied similar to the work product doctrine and distinguished between: (1) “non-derivative material” such as “raw test data, photographs and witness statements” not protected by Section 1119 from production; (2) attorneys thoughts, etc. (i.e., normal work product material), which the Court determined to be absolutely protected from discovery; and, (3) “derivative material” such charts, diagrams and compilations of other data, which the majority determined to be qualifiedly protected from production. This third category of documents was deemed to be discoverable only upon good cause shown and a balancing of the interests.
In its opinion the Court of Appeal also relied upon Evidence Code Section 1120 (a), which provides that “[e]vidence otherwise admissible or subject to discovery outside of a meditation . . . shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation . . . .” The majority specifically expressed its concern that any contrary interpretation of the scope of mediation confidentiality could result in parties utilizing mediation “as a shield to hide evidence.”
The Supreme Court reversed the decision of the Court of Appeal, finding that its interpretation of section 1119(b) was contrary to the language of the statute and legislative intent. The Court held that the confidentiality provision within section 1119 was much broader than the protections afforded under the work product doctrine.
With respect to a portion of the materials which the Court of Appeal had categorized as “non-derivative material,” such as raw test data or actual physical samples, the Supreme Court agreed that such information was subject to production. But its determination was based upon the fact that this type of evidence was not a “writing” under Evidence Code section 250, so it could never fall within the scope of section 1119. However, the Court held that writings summarizing such data, as well as photographs and witnesses statements, if “prepared for the purpose of, in the course of, or pursuant to, a mediation,” fell within the confidentiality provisions of the statute and would be protected from subsequent discovery.
The Supreme Court also rejected the view that what the Court of Appeals had labeled “derivative material” -- even if prepared for mediation -- could nevertheless be discoverable “upon a showing of good cause.” The Court opined that, if this exception which the Court of Appeals had derived from work product principles had been intended to be part of section 1119, the legislature would have included that in the statute and it had not done so.
Although the Supreme Court in Rojas certainly affirmed the importance of confidentiality to a successful mediation process, the Court left at least one important question unresolved: What falls within the scope of “prepared for meditation”? In its amicus curiae brief, the SCMA also expressed its concern that an undefined broad scope of “prepared for mediation” could result in gamesmanship on the part of counsel. At the time of mediation, counsel could submit to the mediator, or through the process, all of its evidence including, particularly, its most damaging evidence, and then protect it from ultimate utilization by claiming the confidentiality provisions of section 1119. Although the Supreme Court stated its belief that the statute could not be used as the improper shield referred to by the majority of Court of Appeals, some mediators and civil litigation practitioners do not necessarily share the Court’s confidence on that subject.
As a mediator I want to encourage parties to mediate as early as possible in order to avoid the time and expense of lengthy discovery. However, based upon the opinion in Rojas, counsel or parties may resist engaging in early mediation, concerned that it will result in a misuse by the opposition of “mediation confidentiality.” For the present time, there are a few steps that I believe practitioners should take to continue to reap the benefits of early mediation, while avoiding the possibility of gamesmanship by opposing counsel in utilizing mediation confidentiality as a shield to prevent the future utilization of damaging evidence.
First, undertake document discovery as early as possible and, preferably, before the first mediation session. Because the scope of the Court’s broad mediation confidentiality statements in Rojas appear to be limited to “writings” under Evidence Code § 250, it is prudent to make certain that all such documentary evidence is obtained through the discovery process prior to mediation. This will prevent the production of additional documents either in preparation for, or during the course of, the mediation by your opposition, followed by a contention that those documents are now “confidential” and cannot be used against their client if the matter is not resolved.
Second, depositions -- other than essential depositions for the purpose of the mediation -- can wait. Testimonial evidence is not within the scope of Evidence Code § 250 and, therefore, not covered by the broad confidentiality protections set forth in Rojas.
Third, in complex construction -- or other complex multiparty – cases, consider reaching agreements early in the case between all counsel as to what will and will not be deemed “prepared for mediation.” Perhaps counsel, in good faith, can agree to what will and will not be excluded from future use based upon utilization in mediation.
The Supreme Court’s decision in Rojas is probably not its last statement on mediation confidentiality. And, there will undoubtedly be Court of Appeal decisions which may attempt to shed further light on the scope of the Rojas decision and its impact on mediation confidentiality. Counsel who are involved in mediation on an ongoing basis, particularly mediation in cases involving significant documentary evidence, are advised to keep current on this subject. I encourage you to refer to my website for updates on subsequent judicial statements on the subject.
Copyright © Scott L. Gilmore 2004. Permission to copy with attribution is hereby granted.
 “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, and disclosure of the writing shall not be compelled . . . in any civil action . . . .“
 In an amicus curiae brief filed in Rojas, the Southern California Mediation Association contended that what had occurred was not a “mediation” within the meaning of the Evidence Code because: (1) the process set forth in the CMO was actually referred to as a “settlement conference;” and, (2) since the retired judge handling the mediation was also the discovery referee under the CMO and thus had certain coercive powers, the protection of the mediation confidentiality provisions within the statute should not cover processes administered by that form of “neutral.” Although the Supreme Court referenced this assertion within footnote 4 of its opinion, the Court noted that none of the parties had raised that issue before and chose to “decline to address this issue.”
 The Supreme Court had the opportunity in Rojas to specifically apply the concept, but chose not to do so. In footnote 9 of its opinion, the Court made note of the assertion by the tenants that some of the documents sought to be protected had not been prepared for the purpose of mediation. However, since the case had settled in the interim, the Court expressed no opinion on this issue, nor remanded it for consideration of the issue by a lower court.