Plaintiffs’ bid to see city consultant’s work in voting case rejected

Plaintiffs in the rare Santa Monica voter discrimination trial say work done by the city's own consultant would turn the defense's case on its head. Defense attorneys, led by Gibson, Dunn & Crutcher LLP, call it a public relations stunt based on pure speculation. Whatever it is, that information won't be seen by the judge.

For weeks, plaintiffs arguing Santa Monica's at-large system discriminates against Latinos claimed the city has secreted a report that shows racially polarized voting -- a key component of the California Voting Rights Act. If true, it would undermine the city's case.

Racially polarized voting occurs when a racial minority's candidate of choice loses out to a racial majority's candidate of choice. In this case, it is Latinos who lose out by not having a districted system, according to plaintiffs. Pico Neighborhood Association v. City of Santa Monica , BC616804 (L.A. Super. Ct., filed April 12, 2016).

Plaintiffs say the city, by fighting to not disclose the consultant information, shows it is hiding a damaging report. The city said it invoked privilege because Karin MacDonald was hired as a consulting expert, out of the scope of discovery. It said plaintiffs have known for two years the city retained non-testifying expert consultants related to the case.

Last week, Superior Court Judge Yvette Palazuelos, who is presiding in the downtown Los Angeles bench trial, subpoenaed the consultant in question, MacDonald, to find out if she commissioned a report for the city.

That forced the city's hand, resulting in Gibson Dunn attorneys offering a proffer to the judge, stating MacDonald was hired -- with the expectation that it would be confidential -- by an election analytics firm six days after the lawsuit was filed to assess the merits of the complaint.

"The city attorney retained Karin MacDonald through her company as a consulting expert after the complaint was filed on April 12, 2016. The retention occurred on or around April 18, 2016 for the purposes of assessing the allegations in the complaint, and to advise the city," the attorneys wrote.

"The work was discussed in closed session with the expectation that it would remain confidential. The city attorney's office has retained that work with the expectation that it would remain confidential," they added.

The judge, in ruling that she was satisfied with the proffer, deemed the work privileged.

"The MacDonald report showed that Santa Monica's at-large election system breaks the law by suppressing the Latino vote. In a vain attempt to hold on to power, the city of Santa Monica hid the MacDonald Report, and spent millions of taxpayer's dollars fighting the case," said R. Rex Parris, one of the plaintiffs' attorneys, in a statement.

The defense said it's still conjecture, and that waiving work-product would be a poor legal move.

"The court correctly denied plaintiffs' baseless and speculative motion and their effort to spin that defeat as a win is frivolous. The City has complete confidence that the judge will rule based on the evidence admitted during trial, which overwhelmingly favors the City -- including the evidence from plaintiffs' own witnesses," according to a statement from the city.

The city is defended by a team of Gibson Dunn lawyers that include partners Marcellus McRae and Kahn Scolnick.

During one argument over the matter, McRae said: "There was no study, there was no poll, there was no survey." Plaintiffs took that as an admission while the defense said it was responding to a claim by opposing counsel about another analysis.

"But in the middle of trial, plaintiffs' counsel began describing a report done by a demographer who took a survey of Santa Monica voters and prepared an analysis similar to what one of plaintiffs' expert witnesses had done. The City's attorney, Marcellus McRae, responded in Court that there was no such study, report, or survey. Mr. McRae confirmed that he stands by that statement," a city spokesperson said.

The trial enters its sixth week today.