In the Matter of the Application of the ExpositionMetro Line Construction Authority for an order authorizing the construction of a two-track at-gradecrossing for the Exposition Boulevard Corridor LightRail Transit Line across Jefferson Boulevard, AdamsBoulevard, and 23 Street, all three crossings located

along Flower Street in the City of Los Angeles,County of Los Angeles, California.And Consolidated Proceedings.BEFORE THE PUBLIC UTILITIES COMMISSIONOF THE STATE OF CALIFORNIAApplication 06-12-005(Filed December 6, 2006)Application 06-12-020(Filed December 19, 2006)Application 07-01-004(Filed January 2, 2007)Application 07-01-017(Filed January 8, 2007)Application 07-01-044(Filed January 24, 2007)Application 07-02-007(Filed February 7, 2007)Application 07-02-017(Filed February 16, 2007)Application 07-03-004(Filed March 5, 2007)Application 07-05-012(Filed May 8, 2007)Application 07-05-013(Filed May 8, 2007)

THE LOS ANGELES UNIFIED SCHOOL DISTRICT’SMOTION TO COMPEL PRODUCTION OF STUDIES AND REPORTSAND TO DETERMINE “DRAFT” TRAFFIC STUDY ADMISSIBLE

ICHAEL

TRUMWASSER

(SBN 58413)F

REDRIC

OOCHER

(SBN 96689)B

EVERLY

ROSSMAN

ALMER

(SBN

234004)STRUMWASSER & WOOCHER LLP100 Wilshire Boulevard, Suite 1900Santa Monica, California 90401Telephone: (310) 576-1233Facsimile: (310) 319-0156e-mail:mstrumwasser@strumwooch.com

Attorneys for the

August 11, 2008

Los Angeles Unified School District

THE LOS ANGELES UNIFIED SCHOOL DISTRICT’SMOTION TO COMPEL PRODUCTION OF STUDIES AND REPORTSAND 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 ExpositionMetro Line Construction Authority (“Expo”) all relevant studies prepared by Expo or bycontractors 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 ExpoAuthority to produce immediately to the parties all such studies.Expo’s 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 fromthe Commission. Modern practice in this tribunal and virtually uniformly in judicial andadministrative proceedings is for parties calling expert witnesses to be required to produceall work-papers and studies that are or may be relevant to the witness’ testimony. (Seegenerally 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, therules specially ensure parties’ access to models and data. (Rules 10.3, 10.4.) Yet Expo haschosen to withhold such studies and reports — documents that, it is now clear, directlycontradict and impeach the testimony of its witnesses.The issue is nicely framed by one such study, a traffic study of the effects of closing

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” studyavailable to any party willing to accept it under terms of the confidentiality agreement governingmediation. LAUSD and Expo agreed that LAUSD would receive the “draft” report under thoseterms, subject to the further agreement that it was “without prejudice to parties’ rights to contend atan evidentiary hearing that they or their representatives should be permitted to refer to the draft studyin testimony or cross examination or to introduce it into evidence in whole or in part or, to thecontrary, 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 privilegeis without merit. Until this motion is ruled upon, LAUSD will not rely on any information obtainedfrom its access to the “draft” report. However, Expo has publicly provided enough information toenable LAUSD to describe it as it has here.2Farmdale Avenue to implement one of the alternative designs for the Farmdale crossing thatthis 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 adeliberative process privilege. Expo then commissioned another study, a study of the firststudy, 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. YetExpo still refuses to produce the antecedent document.How important is the study? Sufficiently important that it has led Expo’s witnessesto completely reverse their opinion on the traffic effects of closing Farmdale. For example,the Prepared Testimony of Eric Olson served on June 9, had Expo’s Chief Project Engineer testifying that “closing Farmdale and diverting that traffic to other streets would causeadverse traffic congestion and delays.” (P. 19.) But last Friday night at 7:38 p.m., Exposerved new Prepared Testimony for three of its witnesses, including Mr. Olson, in which theforegoing statement was replace by the opinion that “closing Farmdale and diverting that