I
Preliminarily, I would deny the petition on the grounds of mootness. First, the real party in interest, People of the State of California represented by the San Diego County District Attorney, has expressed no interest in pursuing this matter because the criminal case for which it sought records from Scripps Memorial Hospital (Scripps) has long since concluded.
*1732Second, the physician who was the subject of the relevant hospital peer review reports and proceedings has always consented to the release of this information.
Third, Scripps is no longer subject to requests for production in this long-since completed criminal action, nor will it be. That is not to say I disagree with the majority’s suggestion the general issue is one of continuing concern. However, there has been no showing made that it is a concern that requires this court to visit the issue which was thoroughly addressed four years ago in People v. Superior Court Memorial Medical Center (1991) 234 Cal.App.3d 363 [286 Cal.Rptr. 478] (hereafter Memorial Medical Center), the holding of which the trial court here was bound to follow under the authority of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937]. There appear to have been no complaints from health care providers the Memorial Medical Center decision opened the floodgates to peer review discovery in criminal cases, as prophesied by its concurring justice. Nor has the Legislature expressed any similar concern in spite of the concurring justice’s exhortation to revamp the statute. Only one reported case, Memorial Medical Center, has shared our concern in the 27 years since Evidence Code1 section 1157 was enacted.
II
On the merits of this case, I respectfully dissent from the majority’s resolution because I find the Memorial Medical Center analysis persuasive.
A.
Indeed, Scripps, unlike its amici curiae, acknowledges its approval of Memorial Medical Center on its facts. That is, where a physician is the subject of a criminal investigation, Scripps agrees the significant public interest in bringing a criminal to justice outweighs any countervailing private interest in preventing the People from accessing these materials.2 In taking this position, Scripps tacitly concedes the discovery restrictions in section 1157 are not “privileges” as the term is used in common parlance and, in particular, as referred to in the Evidence Code. In that code, *1733evidentiary restrictions denominated as privileges are absolute. On the other hand, discovery restrictions give way in the face of a more important public interest. Mr. Witkin distinguishes these categories, listing and discussing evidentiary statutory restrictions qualifying as “privileges” separately from section 1157 and similar “discovery” statutes which he characterizes as “Special Privacy Statutes.” (2 Witkin, Cal. Evidence (3d ed. 1986) Witnesses, §§ 1068, 1095, pp. 1012, 1038.)
Because of the recognized significant difference between a “privilege” and a discovery statute protecting privacy, I conclude section 1157 materials do not fall within the exception to the “Truth-in-Evidence” provisions of the California Constitution, article I, section 28.3 Thus, even were section 1157 originally intended to apply to criminal discovery, the voter initiative would have eliminated that protection.
“Privileges,” characterized as such by the Evidence Code, relate to communications made to persons with whom the communicator stands in a close confidential relationship. This relationship is the basis for the recognition of the “privilege.” They are absolute; no party may reveal the communication except with the express consent or implied waiver of the person statutorily identified as a “holder” of the privilege. While the “holder” of a privilege has absolute control of whether a privileged communication can be revealed, section 1157 has broad exemptions which apply irrespective of any entity’s or individual party’s desire for confidentiality.
Section 1157, subdivisions (c) and (d) state:
“(c) The prohibition relating to discovery or testimony does not apply to the statements made by any person in attendance at a meeting of any of those committees who is a party to an action or proceeding the subject matter of which was reviewed at that meeting, or to any person requesting hospital staff privileges, or in any action against an insurance carrier alleging bad faith by the carrier in refusing to accept a settlement offer within the policy limits.
“(d) The prohibitions in this section do not apply to medical, dental, dental hygienist, podiatric, dietetic, psychological, veterinary, acupuncture, or chiropractic society committees that exceed 10 percent of the membership of *1734the society, nor to any of those committees if any person serves upon the committee when his or her own conduct or practice is being reviewed.”
Thus, by its terms, the statute does not bar disclosures by persons or for proceedings designated in section 1157, subdivisions (c) and (d), even in appropriate civil litigation and without concern for the interests of peer review committee members or the health care provider. Clearly, the Legislature considered even certain private interests paramount to the need for peer review confidentiality. It is significant also that the section was construed as permitting a peer review committee member to voluntarily testify in civil litigation about committee proceedings although the statute prohibited compulsory testimony. (§1157, subd. (b); West Covina Hospital v. Superior Court (1986) 41 Cal.3d 846, 855 [226 Cal.Rptr. 132, 718 P.2d 119, 60 A.L.R.4th 1257].) In spite of a vigorous dissent, the Legislature has not indicated its displeasure with that holding, and there is no statistical data suggesting the benefits of the peer review system have been impaired as a result of that 10-year-old decision.
B.
Scripps also argues a different result should apply here because Memorial Medical Center involved a search warrant rather than, as in this case, a subpoena. However, there is no meaningful difference to our issue whether the procedural vehicle employed to obtain these materials was a warrant rather than a subpoena.
HI
The majority’s assumption that the section 1157 prohibition, when enacted, was intended to apply to criminal cases conflicts with the Legislature’s comments and legislative history following enactment of article I, section 28, subdivision (d) of the California Constitution. The 1983 Summary Digest analyzing the 1983 amendment to section 1157, which added the proceedings and records of registered dietitians’ staffs, registered dietitians’ review committees, podiatric staffs and podiatric review committees, states the bill would provide the existing section 1157 immunities from discovery to those records and proceedings. As the majority acknowledges, the 1983 amendment affirmatively states this amendment to section 1157 was not intended to preclude discovery of relevant evidence for criminal actions. Thus, the Legislative Analysts interpreted the 1983 amendment as providing the same protection from discovery to the newly included peer review committees as already provided by section 1157 before the amendment.
*1735To the same effect, in his letter to Governor Deukmejian urging favorable consideration of his Assembly Bill No. 463, the 1983 amendment to section 1157, Assemblyman Richard Alatorre states his bill “extends provisions of existing law, which provide immunity to discovery to the records or proceedings of various hospital professional staff committees and health care professional review committees, to similar podiatric and registered dietitian committees.” Thus, it appears neither the author of the 1983 amendment to section 1157 nor the Legislative Analyst believed the amendment differentiated between the status of the preexisting and the newly included staffs and committees insofar as it pertained to discovery immunity in criminal actions.
IV
It is noteworthy that a previous 1983 amendment to section 1157 stemming from Assembly Bill No. 1503 (Assemblyman Dennis Brown) which became subsumed in the Alatorre bill, included podiatrists and podiatric staffs. Assemblyman Brown’s letter to the Governor which resulted in his signature, stated: “Like physicians and dentists, podiatrists also police their profession by use of peer review committees. Further, it asserts that podiatrists might be discouraged from offering candid assessments to a podiatric peer review committee if the assessments were discoverable in civil proceedings.”
Subdivision (d) of section 28 of article I of the California Constitution which became effective June 9, 1982 provides: “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each House of the Legislature, relevant evidence shall not be excluded in any criminal proceeding . . . .”
The majority refers to a letter from Legislative Counsel dated September 30,1983, in response to an inquiry whether the 1983 amendment’s reference to discovery in criminal actions avoided the need for a two-thirds vote of the Legislature to enact. Counsel’s response was that if section 1157 were amended with the intent to give newly included health care associations and review committees immunity from criminal discovery, that indeed a two-thirds legislative vote would have been required. (In a digression, the letter digresses and postulates section 1157 can be construed as a “privilege” for the purposes of California Constitution, article I, section 28, subdivision (d)). However, the exclusionary language contained in the 1983 amendment has no relevance to the issue of whether a two-thirds vote would have been required to override the constitutional right of discovery contained in the *1736Constitution. That is, absent an express declaration to the contrary, enacted by a two-thirds vote in each legislative body, the Truth-in-Evidence provisions automatically would have permitted criminal discovery to those newly included entities. By specifically stating the amendment was not intended to prevent discovery in criminal cases, the Legislature avoided any interpretation that criminal discovery would be prohibited should each legislative body pass the bill by a two-thirds vote. (In fact, each of them did.) That is, this language was to prevent any confusion as to whether a two-thirds favorable vote in each body could be construed as a legislative intent to override article I, section 28, subdivision (d).
The petiton of real party in interest for review by the Supreme Court was denied November 30, 1995.
All statutory references are to the Evidence Code.
One would suspect the public interest in preventing a physician-witness from hindering the People from bringing a criminal to justice would be equally important. Or, for that matter, the use of relevant evidence to prevent convictions of innocent persons would seem equally important.
At least one commentator concurs. See McCall, Truth in Evidence and the Privilege Clause—A Compromised Relationship (1992) 23 Pacific L.J. 1061-1062, 1073.