lausd motion to compel

8/14/2019 LAUSD Motion to Compel

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In the Matter of the Application of the Exposition

Metro Line Construction Authority for an order

authorizing the construction of a two-track at-grade

crossing for the Exposition Boulevard Corridor Light

Rail Transit Line across Jefferson Boulevard, Adams

Boulevard, and 23 Street, all three crossings locatedrd

along Flower Street in the City of Los Angeles,

County of Los Angeles, California.

And Consolidated Proceedings.

BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF CALIFORNIA

Application 06-12-005

(Filed December 6, 2006)


(Filed December 19, 2006)


(Filed January 2, 2007)


(Filed January 8, 2007)

Application 07-01-044(Filed January 24, 2007)


(Filed February 7, 2007)


(Filed February 16, 2007)


(Filed March 5, 2007)


(Filed May 8, 2007)

Application 07-05-013(Filed May 8, 2007)

THE LOS ANGELES UNIFIED SCHOOL DISTRICTS

MOTION TO COMPEL PRODUCTION OF STUDIES AND REPORTS

AND TO DETERMINE DRAFT TRAFFIC STUDY ADMISSIBLE

MICHAEL J.STRUMWASSER(SBN 58413)

FREDRIC D. WOOCHER(SBN 96689)

BEVERLY GROSSMAN PALMER(SBN234004)STRUMWASSER & WOOCHER LLP

100 Wilshire Boulevard, Suite 1900

Santa Monica, California 90401

Telephone: (310) 576-1233

Facsimile: (310) 319-0156

e-mail: [email protected]

Attorneys for the

August 11, 2008 Los Angeles Unified School District
mailto:[email protected]:[email protected]


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THE LOS ANGELES UNIFIED SCHOOL DISTRICTS

MOTION TO COMPEL PRODUCTION OF STUDIES AND REPORTS

AND TO DETERMINE DRAFT TRAFFIC STUDY ADMISSIBLE

Throughout the weeks leading to this hearing, the Los Angeles Unified School District

(LAUSD) and other parties have sought in discovery the production by the Exposition

Metro Line Construction Authority (Expo) all relevant studies prepared by Expo or by

contractors for Expo. Several such studies have been prepared but have been withheld from

production by Expo on the claim that the studies are covered by the deliberative process

privilege. This motion requests an order overruling this claim and compelling the Expo

Authority to produce immediately to the parties all such studies.

Expos position is, so far as LAUSD is aware, unprecedented in the proceedings of

this Commission and a brazen attempt to hide relevant information from the parties and from

the Commission. Modern practice in this tribunal and virtually uniformly in judicial and

administrative proceedings is for parties calling expert witnesses to be required to produce

all work-papers and studies that are or may be relevant to the witness testimony. (See

generally California Public Utilities Code Rules of Practice and Procedure rule (Rule) 10.1.

[adopting the same scope of discovery found in the trial courts (compare Code Civ. Proc.,

2017.010)].) Recognizing the technical nature of proceedings before the Commission, the

rules specially ensure parties access to models and data. (Rules 10.3, 10.4.) Yet Expo has

chosen to withhold such studies and reports documents that, it is now clear, directly

contradict and impeach the testimony of its witnesses.

The issue is nicely framed by one such study, a traffic study of the effects of closing


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Everything said in this document about the draft study has been obtained from information*

made public by Expo. Last week, in connection with mediation, Expo made the draft study

available to any party willing to accept it under terms of the confidentiality agreement governing

mediation. LAUSD and Expo agreed that LAUSD would receive the draft report under those

terms, subject to the further agreement that it was without prejudice to parties rights to contend at

an evidentiary hearing that they or their representatives should be permitted to refer to the draft study

in testimony or cross examination or to introduce it into evidence in whole or in part or, to the

contrary, that such uses of the draft study should not be permitted. This motion is brought for that

purpose, to determine that LAUSD is entitled to use the draft report because the claim of privilege

is without merit. Until this motion is ruled upon, LAUSD will not rely on any information obtained

from its access to the draft report. However, Expo has publicly provided enough information to

enable LAUSD to describe it as it has here.

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Farmdale Avenue to implement one of the alternative designs for the Farmdale crossing that

this Commission ordered the Expo Authority to analyze. Expo has marked this study,

prepared by one if its outside contractors, as a draft and withheld the study, asserting a

deliberative process privilege. Expo then commissioned another study, a study of the first

study, which, we now know, has reached the opposite conclusion from the draft study.*/

Last Friday night 63 hours before the evidentiary hearing began Expo produced this

final study and amended its testimony that had been based on the draft study. Yet

Expo still refuses to produce the antecedent document.

How important is the study? Sufficiently important that it has led Expos witnesses

to completely reverse their opinion on the traffic effects of closing Farmdale. For example,

the Prepared Testimony of Eric Olson served on June 9, had Expos Chief Project Engineer

testifying that closing Farmdale and diverting that traffic to other streets would cause

adverse traffic congestion and delays. (P. 19.) But last Friday night at 7:38 p.m., Expo

served new Prepared Testimony for three of its witnesses, including Mr. Olson, in which the

foregoing statement was replace by the opinion that closing Farmdale and diverting that


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traffic to other streets would cause adverse traffic congestion and delays on adjacent streets.

(P. 19, strikeouts and underscoring provided by Expo). The Friday night filing elaborated

on this reversal of the most problematic issue with the following text, again showing

Exops strikeouts and underscoring:

As I mentioned, the most problematic issue with this option is the rerouting of

traffic due to the closure of Farmdale Avenue. Mr. Okazaki will speak to the

details of this in his testimony. In general, the preliminary traffic results have

indicated that the closure of Farmdale would increase traffic volumes on

adjacent streets, but create a significant adverse impact at a number of

intersections. Expo Authority is working to identify mitigations that can be

implemented to reduce these impacts can be mitigated to less than significant.

If this cannot be done, one option would be not to close off Farmdale to

vehicular traffic. (Pp. 25-26.)

We can reasonably infer from such changes in Expos Friday night revised testimony that the

draft traffic study found adverse impacts that would have to be mitigated, so Expo

commissioned another study to reach a conclusion more to its liking. It is understandable

that Expo does not want to produce the first study and have its witnesses impeached by it.

But it is inexcusable that Expo has attempted to cloak its manipulation of the evidence behind

a spurious claim of privilege.

Let us be clear: The deliberative process privilege does not apply to this

proceeding. The common-law deliberative process privilege has been abrogated by the


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Evidence Code. ( Marylander v. Superior Court(2000) 81 Cal.App.4th 1119, 1124-27

[common law deliberative process privilege not applicable to discovery request because not

enumerated in Evidence Code]; Cloud v. Superior Court(1996) 50 Cal.App.4th 1552, 1558-

59 [federally-recognized privilege for self-critical analysis not recognized in California].)

While such claims may, under the proper circumstances, permit a document to be withheld

from the response to a request under the California Public Records Act (Gov. Code, 6250

et seq.; see Times Mirror Co. v. Superior Court(1991), 53 Cal.3d 1325), it does not exist

under the Evidence Code and therefore may not be invoked to defeat discovery. (Gov. Code,

6260.) The privileges contained in the Evidence Code are exclusive, and courts cannot

create new ones. (See Evid. Code, 911; Valley Bank of Nevada v. Superior Court(1975)

15 Cal.3d 652, 656.) [E]videntiary privileges spring exclusively from our Evidence Code

and the courts are no longer free to modify existing privileges or to create new privileges.

(RLI Ins. Co. v. Superior Court(1996) 51 Cal.App.4th 415 51 Cal.App.4th at p. 438, quoting

Pitchess v. Superior Court(1974) 11 Cal.3d 531, 540.) And even the common law

deliberative process privilege would apply only to direct judicial review of an

administrative decision. (51 Cal.App.4th at p. 438, citingIn re California Public Utilities

Comn (9th Cir. 1989) 892 F.2d 778, 781-782.)

The only ground recognized by the Evidence Code for withholding government

documents is the official information privilege of section 1040. (Shepherd v. Superior

Court(1976) 17 Cal.3d 107, 118, overruled on other grounds inPeople v. Holloway (2005)

13 Cal.4th 96, 131;Michael P. v. Superior Court(2001) 92 Cal.App.4th 1036, 1042.) Expo


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has not asserted this privilege and has, consequently, waived it. However, on the chance that

the Commission wishes to give Expo a reprieve from the waiver, we explain that the official

information privilege does not apply to these studies.

Evidence Code section 1040 recognizes two kinds of privilege, an absolute privilege

for information forbidden from disclosure by some other statute (Evid. Code, 1040,

subd. (b)(1)) which plainly does not apply here and a conditional privilege when

[d]isclosure of the information is against the public interest because there is a necessity for

preserving the confidentiality of the information that outweighs the necessity for disclosure

in the interest of justice (id. , subd. (b)(2)). Expo has not sought to conjure any explanation

how public disclosure of a technical study of the traffic effects would not be in the public

interest. To be sure, disclosure would be embarrassing to Expo and would make it more

difficult to defend its position here, but [i]n determining whether disclosure of the

information is against the public interest, the interest of the public entity as a party in the

outcome of the proceeding may not be considered. (Ibid.) No other public interest in non-

disclosure has even been suggested.

And the public interest in disclosure is obvious: These are technical studies by outside

contractors containing information not available elsewhere. To the extent they support

conclusions other than those drawn by Expo and its witnesses, disclosure may well be the

only way to obtain the evidence to test those conclusions, to provide the other parties a fair

opportunity to participate in the hearing, and to give the Commission any confidence in its

ultimate decision.


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Even more fundamentally, these studies will provide a window into Expos apparent

manipulation of technical studies to serve its litigation interests in this case. To the extent

it shows that Expo has suppressed studies with conclusions not to its liking and has

commissioned other studies that alter the assumptions or methodologies to arrive at different

conclusions, that practice is highly relevant to the weight this Commission should give to

Expos witnesses testimony. To ignore such practices and to accept the project proponents

technical assertions at face value would make a mockery of this hearing.

Accordingly, LAUSD moves for an order compelling Expo to produce the draft

traffic study and all other undisclosed studies and work-papers forthwith, and that further

proceedings be managed in a way that permits the parties to make reasonable use of the

belatedly-produced documents.

Dated: August 11, 2008 Respectfully submitted,

By / s /

Michael J. Strumwasser

Michael J. Strumwasser

Fredric D. Woocher

Beverly Grossman Palmer

STRUMWASSER & WOOCHER LLP

100 Wilshire Boulevard, Suite 1900

Santa Monica, California 90401

Telephone: (310) 576-1233

Facsimile: (310) 319-0156

e-mail: [email protected]

Attorneys for the

Los Angeles Unified School District

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