California Court of Appeal Protects Mediation Briefs from Discovery in Malpractice Suit.

In a 32 page opinion, the California Court of Appeal on Monday ruled that a former client suing for malpractice could not obtain copies of the mediation briefs and e-mails quoting from the mediation briefs submitted in connection with a mediation. Plaintiff Corey Kausch (Kausch) filed a malpractice action case against his attorney William Wimsatt and his firm, Magaña, Cathcart & McCarthy alleging that the defendants breached their fiduciary duty by submitting an unauthorized settlement demand during mediation of his underlying personal injury suit. Kausch apparently learned of this allegedly unauthorized demand when reading the “confidential mediation brief” submitted to the mediator. Kausch claimed that the defendant lawfirm reduced his original settlement demand from $3.5 million to $1.5 million without his authorization. After the matter settled at a second mediation session, Kausch sued his attorneys.

During discovery, the defendant lawfirm filed for a protective order in the malpractice action, seeking an order prohibiting disclosure of “mediation-related” communications, including all mediation briefs and e-mails that quoted from a mediation brief, and a communication made by Wimsatt to the personal injury lawsuit defendants purportedly lowering Kausch’s settlement demand. California Evidence Code Section 1115 et seq. protects from disclosure any written or oral communication made “for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation,” as well as all “communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation.” After two hearings, the trial court refused to grant the defendant lawfirm’s motion for protective order on the grounds that the California Supreme Court had held that the confidentiality statute did not protect “perjury or inconsistent statements.”

The Court of Appeal reversed the trial court in respect of the briefs, holding that “mediation briefs are designed to facilitate an open and frank dialogue with the hope that the case can be resolved in the mediation. When written, the authors expect the briefs will always be kept confidential and used only in mediation by the mediator and the parties. Thus, mediation briefs are an integral part of the mediation process and are “prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation,” and are to remain confidential.” The emails were likewise protected, as the “e-mails would not have existed had the mediation briefs not been written.”

The Court of Appeal refused, however, to protect an apparently off-hand comment that one of the defendant lawyers made to the personal injury defendants during a phone conversation unrelated to settlement or mediation, that ““[he] had reevaluated the damages; and . . . a demand for half of plaintiff’s original demand was more in order.” The Court found that the defendant lawfirm failed to meet its burden to show that this conversation was “anything other than a routine discussion, unassociated with mediation, that routinely occurs in civil litigation.”

The case is Wimsatt v. Superior Court, Case No. B196903.