Case Summary: Rojas v. Superior Court of Los Angeles County, 93 P.3d 260 (Cal. 2004)
This case considers whether photographs and videotapes taken for purposes of mediation are protected under section 1119, subdivision (b), of the California Evidence Code, which provides: "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."
The Supreme Court of California held that photographs, videotapes, witness statements, and "raw test data" from physical samples that were "prepared for the purpose of, in the course of, or pursuant to, [the] mediation" are protected under section 1119.
An initial lawsuit between the owner of an apartment complex and the contractors and subcontractors who built the apartment complex settled as a result of mediation. The settlement agreement provided that the documents used in the mediation process were protected by section 1119 of the California Evidence Code. The tenants of the apartment complex then brought an action for defective construction that caused injury. They sought the documents exchanged in the mediation. The Appellate Court held that section 1119 did not protect pure evidence, but protected only the substance of the mediation. The California Supreme Court granted review.
The California Supreme Court reversed the Court of Appeal's decision and found that photographs, videotapes, witness statements, and "raw test data" from physical samples that were "prepared for the purpose of, in the court of, or pursuant to, [the] mediation" are protected under section 1119 of the Evidence Code. The Court noted that reversal was necessary because the lower court's holding: (1) directly conflicted with the plain language of section 1119, (2) was inconsistent with the relevant legislative history, and (3) was inconsistent with the purpose of mediation confidentiality provisions.
The Supreme Court found that under the plain language of section 1119 both photographs and written witness statements qualify as "'writing[s], as defined in [s]ection 250,' if they are 'prepared for the purpose of, in the course of, or pursuant to, a mediation,' then they are not 'admissible or subject to discovery, and [their] disclosure . shall not be compelled . .'" The Court of Appeal's holding that "raw test data" are never protected by section 1119 was correct only as it pertains to actual physical samples because physical objects are not "writing[s], as defined in [s]ection 250." Thus, the Court of Appeal's decision was in error "insofar as it was referring to recorded analyses of those samples . because such analyses are 'writing[s], as defined in [s]ection 250,' under section 1119, if they were 'prepared for the purpose of, in the course of, or pursuant to, a mediation,' [and therefore] they are not 'admissible or subject to discovery, and [their] disclosure . shall not be compelled . .'"
The Court of Appeal's holding was also inconsistent with the relevant legislative history. The California Law Revision Commission, in making its recommendation regarding mediation confidentiality, "specifically considered the discoverability of expert reports and photographs and drafted its proposed confidentiality provisions to preclude discovery of such reports and photographs if they were 'prepared for the purpose of, in the course of, or pursuant to, a mediation.'" Furthermore, "the Commission chose language expressly designed to give a mediation participant who takes a photograph for purpose of the mediation 'control over whether it is used' in subsequent litigation, even where 'another photo' cannot be taken . ."
The Court of Appeal's holding was also "inconsistent with the overall purpose of the mediation confidentiality provisions." The California Supreme Court noted that if the Court of Appeal's holding was given effect it "would significantly undercut the Legislature's efforts to ensure the confidentiality necessary to effective mediation."
In addition, the California Supreme Court held that the Court of Appeal erred in holding that a "good cause" exception exists with respect to derivative material "prepared for the purpose of, in the course of, or pursuant to, a mediation." The Court reasoned that the Court of Appeal's analysis stemming from principles governing discovery of work product was inappropriate because discovery of work product is governed by statute. Unlike section 2018 of the Code of Civil Procedure, which establishes that work product is discoverable if "the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice," no such statutory exception exists within section 1119 of the Evidence Code.
Furthermore, the Legislature did not provide a "good cause" exception anywhere within the statute, despite the fact that it did enact other exceptions to section 1119. For instance, section 1122(a)(2) "permits discovery of protected communications and writings that were 'prepared by or on behalf of fewer than all the mediation participants' if 'those participants expressly agree' to disclosure and disclosure would not reveal 'anything said or done or any admission made in the course of the mediation.'" Given that the Legislature did recognize other exceptions and "there is no evidence of a legislative intent supporting the 'good cause exception,'" under the expressio unius est exclusio alterius maxim of statutory construction, no such exception should be read into the statute.