BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA Application 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)

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 rd Street, all three crossings located along Flower Street in the City of Los Angeles, County of Los Angeles, California.

And Consolidated Proceedings.


August 11, 2008

M ICHAEL J. S TRUMWASSER (SBN 58413) F REDRIC D. W OOCHER (SBN 96689) B EVERLY G ROSSMAN P ALMER (SBN 234004) STRUMWASSER & WOOCHER LLP 100 Wilshire Boulevard, Suite 1900 Santa Monica, California 90401 Telephone: (310) 576-1233 Facsimile: (310) 319-0156 e-mail: Attorneys for the Los Angeles Unified School District

THE LOS ANGELES UNIFIED SCHOOL DISTRICT’S 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. 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 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


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 Expo’s 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 Expo’s 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

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. 2


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 Exop’s 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 Expo’s 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


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, 155859 [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, citing In re California Public Utilities Com’n (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 in People v. Holloway (2005) 13 Cal.4th 96, 131; Michael P. v. Superior Court (2001) 92 Cal.App.4th 1036, 1042.) Expo


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 nondisclosure 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.


Even more fundamentally, these studies will provide a window into Expo’s 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 Expo’s witnesses’ testimony. To ignore such practices and to accept the project proponent’s 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,


/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: Attorneys for the Los Angeles Unified School District


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