Michael P. Carbone

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Publications > Construction Defect Mediation > Protecting Forensic Evidence




Michael P. Carbone, Esq.

                        Most practitioners who handle construction defect litigation are aware of the California Supreme Court’s decision in Rojas v. Superior Court (2004) 33 Cal. 4th 407, in which the Court affirmed the absolute confidentiality of forensic evidence that is prepared for the purpose of mediation, rejected the Court of Appeal’s analysis that mediation confidentiality operates like the work product privilege, and explained that the preparer of the evidence controls its ultimate use, i.e. whether or not it will be offered at trial.

                        This paper reviews both the facts and the holding in Rojas.  It also explains that the confidentiality of forensic evidence can be lost unless it can be shown that the evidence was in fact “prepared for the purpose of mediation” and proposes a way to avoid that result.

The Facts

                        Rojas v. Superior Court arose after the settlement of a construction defect case involving an apartment complex.  The owner had sued the contractors and subcontractors who built it, alleging that water leakage had produced toxic molds and other microbes in the buildings. The court issued a case management order referring the case to mediation.

                        When the case settled, the settlement agreement stated in part that, “…throughout this resolution of the matter, consultants provided defect reports, repair reports, and photographs for informational purpose which are protected by the Case Management Order and Evidence Code §§ 1119 and 1152, and it is hereby agreed that such materials and information contained therein shall not be published or disclosed in any way without the prior consent of plaintiff or by court order.”  (33 Cal. 4th at 412.)

            Within a few months thereafter, tenants of the apartments filed an action for personal injuries and property damage against the owner and the various contractors, alleging that defective construction had allowed water to intrude and microbes to infest the complex.  In this action, they sought to discover numerous pieces of evidence that had been created during the pendency of the prior action.  One of the buildings at the complex had been closed for abatement, including demolition and replacement of drywall and ceilings, application of antimicrobial agents, and plumbing repairs. Much of the evidence sought by the tenants was created during the abatement process or in connection with destructive testing.  The tenants sought production of numerous documents, including:  (1) discovery exchanged between the parties to the prior litigation; (2) physical evidence of the condition of the buildings, including photographs, videotapes, test samples and reports, and any physical evidence that was removed from the buildings and saved, such as drywall, plumbing, and framing; (3) writings describing the buildings, including written notes of observations made during inspections and witness interviews; and (4) writings evidencing experts’ opinions and conclusions, whether or not communicated to the defendants in the prior action.  The owner and one of the contractors opposed the motion, arguing that all of the requested documents were protected from discovery under Evidence Code Section 1119(b) because they had been prepared for mediation.

                        The trial court conducted an in camera review of the documents in question and ruled that all compilations of information that had been prepared for the mediation, including photographs of conditions at the complex, were protected from discovery under Section 1119(b).  On that basis, the court refused to compel production of the recorded statements of former or current tenants, results from destructive testing, and all “raw data” collected from air sampling for mold spores, bulk sampling of mold spores, and destructive testing.  The tenants then sought a writ of mandate in the Court of Appeal.

            In a divided decision, a majority of the Court of Appeal held that application of Section 1119(b) was governed by the same principles that govern application of the work product privilege under Code of Civil Procedure Section 2018.  Applying those principles, the majority classified the raw test data, photographs, and witness statements as “nonderivative” material that is not protected.  The majority further held that derivative materials—amalgamations of factual information and attorney thoughts, impressions, and conclusions—are discoverable upon a showing of good cause, which involves a balancing of the need for the materials and the purposes served by mediation confidentiality.

The Holding

                         The Supreme Court reversed the decision of the Court of Appeal.  The Court pointed out that photographs and written witness statements both qualify as “writings” as that term is defined in Section 250 of the Evidence Code.  With regard to “raw test data,” actual physical samples collected at the apartment complex, either from the air or from destructive testing, would not be “writings.” However, the recorded analyses of those samples, such as reports describing the existence or amount of mold spores in a sample would be “writings.”  Any such “writings” that were “prepared for the purpose of, in the course of, or pursuant to, a mediation,” are not “admissible or subject to discovery, and [their] disclosure . . . shall not be compelled.”  (33 Cal.4th at 416-417).

                         Regarding the use of such evidence at trial the Court said that under the express terms of Evidence Code Section 1122 (a) the decision to use the evidence or not is left up to the preparer.

The Problem

                        To most practitioners and mediators the Rojas decision was good news.  The Court simply held that the Evidence Code means what it says.  Yet one concern still remains.  How can it be shown that the evidence was in fact “prepared for the purpose of mediation?”

                        The Court states that the question is one of fact.  This part of the decision has been disappointing to some observers, who had hoped that the Court might set out a bright-line test rather than leaving the question open for a case-by-case determination.  Some now counsel the necessity of showing that the evidence was prepared in contemplation of a mediation that has actually been scheduled and that all such writings should be marked as “Confidential-Prepared for Mediation.”  But there may be a more basic issue, one that was never raised in Rojas:  Is the process in fact a “mediation?”

                        Evidence Code Section 1115 defines “mediation” in rather broad terms, allowing for a considerable amount of flexibility in structuring the process.  However, the definition expressly excludes a mandatory settlement conference.  And despite this exclusion, it has long been common practice to prepare case management orders which expressly refer to the mediation as a “mandatory settlement conference of this court.” Indeed such was the case in Rojas itself, but the issue was never raised.  On appeal, the parties simply assumed that the process was a mediation. 

                        Mediation is intended to be a voluntary process.  That is the reason why a mandatory settlement conference is excluded from the definition of mediation. But in order to compel parties to participate courts have often chosen to ignore the exclusion. Compounding the problem, case management orders will sometimes refer to the mediator as a “special master,” “mediator/referee,” or “settlement master.” 

                        It may only be a matter of time before another case like Rojas arises in which the parties seeking forensic evidence from a prior case will successfully claim that it was not prepared for the purpose of mediation but was instead prepared for a mandatory settlement conference.

The Solution

                        The solution to the problem is to re-think the settlement process.  It is not possible to mandate litigants to a settlement conference and to call it a mediation. Yet the nature of complex litigation is that some of the parties may be unwilling to mediate.  Thus a different way must be found to bring them into the settlement process.

                        For many practitioners, the solution has been the use of two neutrals.  Although parties cannot be forced to mediate, they can always be ordered to comply with discovery. Accordingly a referee is appointed by the court to manage discovery and keep the case on track, while a mediator is retained separately by the parties to handle the settlement negotiations.  To deal with parties who refuse to participate in mediation, the court retains the power to order a mandatory settlement conference.  These conferences can be held before a judge, a judge pro tem, or the referee acting in a similar capacity.

                        Not only does this process keep the mediation confidential it also avoids compromising the mediator’s effectiveness. It is often too much to ask of one individual that he or she act as both a referee and as a mediator.  In order to manage the discovery process and enforce compliance with the case management order, it can be necessary for the neutral to be a policeman.  However the neutral may be reluctant to “come down on” an offending party for fear of the effect that it may have on later settlement negotiations.

                        In order for mediation to be successful, it is important that the parties be able to rely upon the confidentiality of the process.  Treating mediation as a mandatory process will place that confidentiality at risk and should be avoided if mediation is to remain an effective way of resolving complex litigation.


Copyright Michael P. Carbone 2006


Copyright © Michael P. Carbone

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