Rojas Will Clarify Scope of Mediation Privilege

Rojas v Superior Court (2002) 102 Cal. App. 4th 1062 (review granted 1/15/2003) holds that trial courts may utilize the analysis for attorneys’ work product to determine whether certain writings specifically prepared for and used during the course of a mediation are subject to discovery (“mediation materials” or “materials”). ¹

Under the depublished Rojas analysis, trial judges are given the power to conduct in camera review of mediation writings and to make findings of whether the writings are absolutely protected or subject to qualified protection, i.e., the writings can be ordered produced if the mediation writing is not derivative of the attorney’s thought process and the moving party makes a sufficient showing of ‘good cause’ or necessity for the mediation writings.

Rojas rejects a rule that would clothe mediation writings with the same protection afforded in other privileged communications, e.g., attorney-client privilege.

In granting review of Rojas, the Supreme Court could either: A) endorse the Rojas ‘work product’ model for mediation writings, or B) provide absolute privilege for mediation materials, thus exempting those materials from trial court in camera review.²

The high court’s choice will depend upon whether the value of protecting the mediation process requires absolute confidentiality, not only of the events occurring within the mediation but also for materials prepared for and/or used in it. ³

The protections provided by the recognized Evidence Code privileges⁴ generally protect and promote relationships. Thus, the Supreme Court may well rule that mediation material is indistinguishable from communications made within the various privileged relationships, and prohibit a court from forcing disclosure of mediation materials regardless of he showing of necessity.

By adopting the work product doctrine model, Rojas may avoid reversal if the court majority’s considers that the critical value is protection of the efforts of the attorney in the adversarial process and not primarily to protect the relationships within the mediation process. The work product doctrine allows an attorney’s efforts to be discovered in exceptional cases and only where there is a demonstrated need and the materials are not those derived from the attorney’s thought processes. (See, CCP section 2018.)

Until this issue is resolved, attorneys and mediators are urged to avoid the complications of Rojas by exploring stipulations to protect mediation material from further use in discovery and/or trial or to agree that the mediation materials can be used during litigation. Absent a stipulation, cautious mediators and attorneys should make parties and clients aware that mediation materials may be subject to trial court in camera inspection and may be ordered produced in response to discovery or subpoena requests.

Rojas Examined

The facts in Rojas pitted a group of apartment complex tenant plaintiffs against the owners of the property with respect to alleged construction defects that resulted in the presence of “toxic molds and other microbes on the property.” (102 Cal. App.4th @1067.)

The same defendant owners were plaintiffs in earlier construction defect litigation against the contractors and subcontractors who had built the apartments. The parties entered into mediation during the first lawsuit. Attorneys prepared for the mediation by taking photographs illustrating the alleged defects. The attorneys placed arrows and other markings on the photographs and used them to make points during the mediation.

The first lawsuit settled by an agreement that contained a standard confidentiality clause.

The plaintiffs in the second suit (tenants) sought to discover the mediation material and photographs on the grounds “that the changed conditions of the premises due to remediation, and their inability to replicate the raw data and images recorded on the photographs, constituted good cause for the production of the materials sought.” (Ibid. @ p.1070.) The owners objected, characterizing the photographs not as ‘raw’ evidence, but rather as the product of assignments from attorneys carried out by experts, i.e., the photographs were prepared only for the purposes of the mediation. (Ibid.@1071.)

The Rojas trial court ruled that the materials were absolutely protected from discovery (Evid. C. sections 1115 et seq.), despite the tenants’ showing of necessity.

The Rojas court of appeal majority (Lillie and Johnson) reversed, applying a work product analysis⁵. The court held that material prepared for and/or used in a mediation may be ordered to be produced in subsequent discovery if, after an in camera, inspection the trial court finds: (a) a party to litigation has no other means to obtain the evidence, (b) the material sought to be discovered is not ‘core work product,’ i.e., solely reflecting an attorney’s impressions, conclusions, opinions, or legal research or theories, and (c) the material is only ’derivative’ material, i.e., an “amalgamation of factual information and attorney thoughts, impressions, conclusions.” (Ibid. @pp.1077-8.)

Rojas relied upon its statutory interpretation of Evidence Code sections 1119⁶ and 1120⁷ in order to reach the conclusion that non-derivative material or ‘pure evidence’ is not exempt from either an in camera trial court review or forced disclosure.

Rojas found that Evid. C. sections 1119 and 1120 protect only “the substance of the mediation, i.e., the negotiations, communications, admissions, and discussions designed to reach a resolution of the dispute at hand. These statutes do not protect pure evidence.” (Ibid. pp.1074-5; emphasis added.)

Rojas concluded that photographs, even though prepared for mediation, were ‘pure evidence’, i.e., not core work-product, and the sympathetic plaintiffs needed this evidence to prove its case.

Justice Perluss, in dissent, argued forcefully that the majority’s compelled disclosure “upon a sufficient showing of need [was] inconsistent with this narrowly drawn exception to the otherwise absolute protection created by section 1119.”

Foxgate and Rojas Examined

In Foxgate Homeowners Ass’n v. Bramalea California (2001) 26 Cal. 4th 1, 13, the Supreme Court upheld the ‘mediation privilege’ by preventing a mediator from reporting facts to the trial court, which occurred during the mediation, and which the trial court relied upon in finding one party acted in bad faith during the mediation.

Foxgate distinguished cases widely perceived in the mediation community to threaten the confidentiality of the mediation process, such as Rinaker v Superior Court(1998) 62 Cal App 4th 155 and Olam v. Congress Mortg. Co. (N.D.Cal. 1999) 68 Fed. Supp.2d 1110. In interpreting Evidence Code sections 1119 and 1121, Foxgate holds that the statutory scheme does not allow a trial court the power to “fashion an exception for bad faith in mediation”(Ibid. @ p. 17), and further holds that the sanctions imposed for bad faith conduct may not be proven by statements made by the mediator based upon observations made during the mediation.

In the unanimous decision to grant review of Rojas, the Supreme Court may well find that the mediation privilege statutes did not confer upon the trial court the power to ‘fashion an exception’ for forced disclosure of ‘raw’ evidence.

The Work Product Doctrine

The attorneys’ work-product rule is not a privilege defined by the Evidence Code, sections 900 et seq., but is often referred to as a “doctrine.” Its purpose is to protect the attorney’s right to prepare materials for the client’s benefit and to prevent parties from taking “unfair advantage” of an adversary’s efforts BP Alaska Explorations, Inc. v Sup. Ct. (1988) 199 Cal App 3rd 1240, 1256 (the work product privilege exists to “promote the adversary system by safeguarding the fruits of an attorney's trial preparations from the discovery attempts of the opponent.” The work product rule protects information from invasion by opposing parties in order to encourage effective trial preparation).

Where the material sought in discovery or by subpoena is clearly an attorney’s ‘opinions, impressions, conclusions and theories,’ it will receive absolute protection, independent of whether it was communicated by the attorney to the client. (Ibid.) [See points and cases, California Practice Guide, Civil Procedure Before Trial, Rutter, sec.8:238.3 et seq.]

Most materials, such as memoranda, photographs, witness interview notes, summaries of documents, etc., generally raise thorny issues in discovery disputes because the facts often present a hybrid of the attorney’s ‘opinions, etc.’ with other material generated or gathered on behalf of the client. Where it is not crystal clear, the decision to force disclosure of such conditionally protected matter is based historically upon a ‘doctrine of necessity’ and the obligation of the party seeking discovery to prove that there was no other alternative. “The work product of a lawyer is not subject to discovery except in cases of necessity (e.g., where witnesses are no longer readily available). Hickman v. Taylor (1947) 329 U.S. 495 (absent showing of necessity, plaintiffs denied access to oral and written statements taken by attorney from survivors of a boat accident.)

Under California statutory protection and interpretation, the work product doctrine protects the right of the attorney to properly prepare the client's case, i.e., assemble information, sift the relevant from the irrelevant , prepare legal theories and plan strategy without undue and needless interference. As in Hickman, conditional claims of protection may be overruled and the court may force disclosure based upon a proper showing of ‘necessity’ and after the material is produced for review in camera. (See, generally, State Comp. Ins. Fund v. Sup. Ct.(2001) 91 Cal. App. 4th 1080, 1091-2.)

Statutory Privileges

Contrast the work product rule with the statutory privileges enumerated in the Evidence Code, sections 930, et seq., which in various ways protect relationships by ensuring the unfettered flow of information between one person and another. The attorney-client privilege (Evid. C. 950 et seq.) is designed to protect ‘confidential communications’ (Evid.C. section 952) transmitted by and between the attorney and client. Similar privileges exist for a host of other relationships, i.e., doctors, clergy, spouses and many others.

Because the statutory privileges exist to primarily protect relationships, involuntary disclosure of such confidential material is inconsistent with this primary purpose. Arguably, the threat of disclosure would tend to destroy the essential nature of the relationship and to cause degradation of the ability of the professional to effectively perform. These are policy statements that provide protection no matter how compelling the case of necessity for their disclosure.

“Privileges are granted, however, for reasons of policy unrelated to the reliability of the information involved. A privilege is granted because it is considered more important to keep certain information confidential than it is to require disclosure of all the information relevant to the issues in a pending proceeding.” Evid. C., section 910, LRC Comment.)

Where such a privilege is claimed, the communication is presumptively confidential, which presumption shifts the burden to the opposing party to establish the communication was not "confidential." [ Evid C. section 917(a) (amended eff. 1/1/03.]

The court may not compel production of such communications for in camera review. Evid C. section 915(a); Moeller v. Sup.Ct. (Sanwa Bank) (1997) 16 Cal.4th 1124, 1135, (attorney-client privilege). Further, the protections of these privileges apply whether or not the disclosure sought in a pending trial proceeding. People v. Superior Court (Laff) (2001) 25 Cal..4th 703 (attorney from whom files are seized pursuant to a search warrant may invoke the attorney-client privilege to prevent disclosure of documents pursuant to a search warrant, even when no proceeding is pending at which testimony may be compelled).

The Photographs under Privilege Analysis

There are no recent cases addressing whether photographs taken by the attorney for the express purpose of communicating some fact or facts to the client would be considered absolutely immune from discovery under an attorney-client privilege analysis. See, Suezaki v Sup. Ct. (Crawford (1962) 58 Cal. 2nd 166, 177-178 (transmission to defendant client of an investigator’s photographic recording of injured plaintiff, even if intended to be ‘confidential,’ does not create a privilege; case decided before adoption of CCP section 2018). See, also, People v. Gillard (1997) 57 Cal. App. 4th 136, 162-3 (criminal case; defendant accused of worker’s compensation fraud. Held: error [ultimately, harmless] for court to admit photographs taken by defense attorney’s investigator specifically to be communicated to the defense attorney).

Conclusion

While the mediation confidentiality sections are not included in the group of explicit Evidence Code privileges, their purpose is to protect an important process that is totally dependent upon trust and openness. Foxgate explicitly recognizes the social importance and utility of the mediation process. “The purpose of confidentiality is to promote a candid and informal exchange regarding events in the past….this frank exchange is achieved only if the participants know that what is said in the mediation will not be used to their detriment though later court proceedings.” (Ibid @ 15.)

A good argument can be made that if the Rojas work product analysis is allowed to stand, attorneys and/or parties will not prepare mediation materials at all or will be wary and circumspect about those they do prepare and produce, particularly if they realize such materials may be subject to trial court in camera inspection and forced in current or related future disputes.

Most mediators would agree that any policy that inhibits complete openness, trust and frankness in the mediation process is counterproductive to a mediated resolution. For this reason, and based upon its strong endorsement of mediation confidentiality in Foxgate, it is not implausible to envision the Supreme Court’s rejection of a court-made ‘work product’ exception to the mediation confidentiality code sections, and a decision confirming that the mediation privilege requires absolute protection.