Real Estate and Construction Law Blog

Rojas v. Superior Court
(Coffin) 33 Cal. 4th 407(Jul. 12, 2004)

Owner of an apartment complex mediated and settled a dispute with the general contractor who built the complex. Subsequently, tenants in the complex sued owner and contractor for damages caused by construction defects. The tenants moved to compel discovery of the mediation files from the underlying dispute while owner and contractor argued that California Evidence Code Section 1119 protected such files from discovery.

Clarifying the scope of Section 1119, the California Supreme Court held that because photographs, witness statements and raw test data qualify as "writings" under California Evidence Code Section 250, if they are "prepared for the purpose of, in the course of, or pursuant to" a mediation then they are protected from disclosure under Section 1119. The Court further held that derivative material "that is prepared for the purpose of, in the course of, or pursuant to, a mediation" is not discoverable "upon a showing of good cause," refusing to apply the analysis used in attorney work product disputes.

Finally, the Court found that a writing, which qualifies as "evidence" under California Evidence Code section 140, is protected only if it was "prepared for the purpose of, in the course of, or pursuant to, a mediation" and a party cannot secure protection for a writing merely by using it at a mediation.

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