SoCalGas has ten days to produce discovery, judge says

LOS ANGELES -- Southern California Gas Co. likely will have 10 days to produce communications with a third-party engineering firm, a superior court judge ruled Wednesday, brushing back the utility's claim that the documents were privileged.

SoCalGas hired engineering consultant AECOM Technology Corp. on a variety of projects at its Aliso Canyon facility over several years, including services linked to a methane gas leak in Porter Ranch in October 2015.

More than 40,000 plaintiffs have sued SoCalGas alleging the leak caused health problems. Southern California Gas Leak cases, JCCP 4861 (L.A. Super. Ct., filed Feb. 2, 2016).

Los Angeles County Superior Court Judge Carolyn B. Kuhl has set a June 2020 trial date.

The purpose of Wednesday's hearing was to resolve a dispute over documents SoCalGas claims were protected under an order Judge John Shephard Wiley issued Oct. 18, 2018.

James J. Dragna

Kuhl tentatively ruled Wednesday she would require the utility to produce all but six of the 174 documents withheld. The judge was expected to finalize her ruling late Wednesday. The plaintiffs have also requested that she sanction the utility $6,500 for withholding the documents.

In her tentative, Kuhl pointed to declarations by Michelle Park Chiu from Morgan, Lewis & Bockius LLP and Robert A. Wyman from Latham & Watkins LLP, who were hired by SoCalGas. Both asserted claims of attorney-client privilege and work product protection regarding their exchanges with AECOM. Wyman also argued certain communications between Latham and AECOM occurred to obtain technical information about Aliso Canyon, which allowed Latham to properly advise SoCalGas.

SoCalGas lawyers James J. Dragna, David L. Shrader and Deanne L. Miller maintained 771 out of 53,000 documents produced by AECOM were protected and part of a privilege log.

Wiley previously ordered that for documents to be withheld they must be records AECOM authored at the request of a SoCalGas lawyer. Documents that SoCalGas lawyers gave to AECOM for review regarding technical expertise that would assist in developing legal strategy were also protected. That protection also applied to documents containing legal opinions SoCalGas lawyers gave to AECOM for evaluating the accuracy of technical information. Communications with experts whom SoCalGas retained but who aren't testifying are also privileged, Wiley said.

The utility argued the AECOM documents plaintiffs wanted fell under Wiley's order.

But Kuhl wrote that neither Chiu or Wyman specified who was preparing or reviewing AECOM's privilege log. Wyman doesn't provide substantive proof the documents were protected, or the identity of SoCalGas lawyers or which documents were authored by AECOM, she wrote.

Special counsel Albert J. Garcia on behalf of SoCalGas, wrote in his declaration that AECOM gave him technical information he needed to properly advise the utility, but failed to identify which SoCalGas lawyers or employees were asked to get information from AECOM for his work, Kuhl wrote. Like Wyman, Garcia's declaration contains no specific information as to any withheld document, Kuhl wrote.

"Plaintiffs' evidentiary objections are well taken," Kuhl wrote.

Plaintiffs' counsel Brian J. Panish and Jesse Creed of Panish Shea & Boyle LLP and R. Rex Parris of the Parris Law Firm said after the hearing Kuhl made the right decision.

Jesse Creed

"SoCalGas has been claiming privilege on hundreds of documents without any substantial justification, which has been a common theme in the case," said Panish. "They've been delaying this case for many years. We've been trying to get it on track to get to trial, and that's what the judge wants to do."

"The list goes on and on. It truly is abusive of the discovery process," said Creed, adding that plaintiffs' are raising a separate privilege dispute involving communications between SoCalGas and its crisis management firm, Sitrick and Co.

At an Aug. 28 hearing, Kuhl will hear arguments over the admissibility of a report filed by third-party Blade Energy Partners, which found well-casing corrosion was responsible for the gas leak. Plaintiffs' counsel said they anticipate thousands more documents from other third-party firms hired to work with SoCalGas on the leak.

"We think those documents are going to reveal just how nefarious their conduct really was. This is the first crack in the egg," Parris said.