Rojas

We granted review in this case to consider the scope of Evidence Code section 1119, subdivision (b), which provides; “No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation ... is admissible or subject to discovery . ...” In a divided decision, a majority of the Court of Appeal held that application of this statute is 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 raw test data, photographs, and witness statements as nonderivative material that is not protected. By contrast, the majority held, material reflecting only an attorney’s impressions, conclusions, opinions, or legal research or theories is absolutely protected. Finally, the majority held that derivative materials—amalgamations of factual information and attorney thoughts, impressions, and conclusions—are qualifiedly protected; they are discoverable only upon a showing of good cause, which involves a balancing of the need for the materials and the purposes served by mediation confidentiality.

We conclude that the…