Judge seeks city’s expert report, will rule on privileged work-product question

LOS ANGELES -- The judge in a trial challenging Santa Monica's at-large election system ordered the city's attorneys Wednesday to produce a witness whom plaintiffs say drafted a city report saying racially polarized voting occurred.

If true and not found to be privileged information, the report would be contrary to one of the city's arguments in the discrimination lawsuit that racially polarized voting doesn't occur during its at-large elections.

The defense did not confirm or deny the existence of such a report, saying such communications are a result of work-product privilege.

Los Angeles County Superior Court Judge Yvette Palazuelos, who is presiding in the bench trial, said she wanted to find out more, ordering the witness in question, Karin MacDonald, to testify. It's not clear when she will.

"I do want to hear from Ms. McDonald as to whether such a report exists," said Palazuelos. "If there is one, perhaps there is privilege."

The plaintiffs' attorneys said they had circumstantial evidence that a report produced for the city attorney's office by MacDonald of Oakland-based Q2 Data & Research exists.

"I don't believe that a public agency can hire a consultant to find out polarized voting and then belatedly cover it up with attorney-client privilege," R. Rex Parris, an attorney for plaintiff Pico Neighborhood Association, told the judge.

Kahn Scolnick, one of the defense attorneys from Gibson, Dunn & Crutcher LLP, said the existence of the report was pure speculation. Regardless of content, reports by consultants retained by the city constituted privileged information outside the scope of discovery, according to the defense.

"If true, we have a clear situation of work-product privilege," said Scolnick, who asked for any such report to be looked at in camera by the judge.

Proving racially polarized voting, or when a racial minority's candidate of choice loses to the racial majority's candidate of choice, is a key component of the California Voting Rights Act.

Plaintiffs' experts have so far testified that polarized voting has occurred since 1994 because only one Hispanic surnamed candidate has been elected to the city council. The defense, in arguing that one-seventh of the council is Latino, contends more has to be shown under the law, including voter dilution.

Plaintiffs also include Maria Loya, a failed city council candidate from the Pico neighborhood. They hope to persuade the judge to order the city to change to a district elections system. Pico Neighborhood Association et. al. v. City of Santa Monica, BC616804 (L.A. Super. Ct., filed April 12, 2016).

The defense, in briefing the issue, said plaintiffs surmised there was racially polarized voting based on a conversation Santa Monica resident Tricia Crane had with MacDonald.

"According to Ms. Crane, when she asked Ms. MacDonald 'whether the study she reportedly conducted favored district elections, Ms. MacDonald did not respond,'" according to the defense.

"From Ms. MacDonald's purported silence, plaintiffs make the logical leap that she had been retained as the city's consultant, that her analysis 'did favor district elections,' and that it was 'most likely unfavorable to the city's case,'" according to the defense.

Further, the defense said plaintiffs wrongly inferred from a recent deposition of former Santa Monica Mayor Tony Vazquez that such a report was done by the city's testifying experts. The judge indicated in her ruling the contents of any report wouldn't necessarily be disclosed in court, just the existence of a report.

"If defendant feels the contents of such a report are subject to the work-product protection and/or attorney-client privilege, then defendant may raise such objection when necessary if questioning strays into a privileged area," the judge ruled.