As you may be aware, the State Supreme Court unanimously held yesterday that all documents and other materials prepared for mediation are off limits to discovery and subsequent lawsuits. Rojas v. Superior Court of Los Angeles (2004) DJDAR 8387 (Cal. July 12, 2004). In Monday’s case, the Supreme Court decided that an apartment complex owner who used photographs of water damage during mediation with a developer cannot be ordered to produce those photographs to the plaintiff’s (tenants) in the lawsuit concerning toxic mold and construction defects. The court reaffirmed mediation privilege and relied on a 2001 precedent, Foxgate Homeowners’ Association v. Bramalea California Inc., 26 Cal.4th 1 (2001). The Bramalea court held that confidentiality requirements prohibit introduction of a mediators report in the litigation. The Supreme Court interpreted Evidence Code Section 1119 which provides that “no writing … 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.”

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