Judge OKs plaintiffs access to redacted Woolsey Fire report

After lambasting a deputy California attorney general for refusing to publicly address questions relating to prior criminal probes against a utility, a state court judge overseeing the Woolsey Fire litigation then granted his motion to quash subpoenas on Tuesday, allowing plaintiffs only to receive a redacted version of the causation report.

A full causation report is anticipated to be available in April 2020. Plaintiffs sought to receive the report while the attorney general tried blocking their efforts, claiming the report contained privileged information important to the criminal investigation into Southern California Edison Co., whose equipment has been blamed by plaintiffs for the fire. Southern California Fires, JCCP 5000.

The Woolsey Fire burned 96,949 acres in Los Angeles and Ventura counties in November 2018. Edison is facing thousands of civil claims linked to the fire.

The planned trial date of April 27, 2020 has been vacated. No new date was set.

A second trial, scheduled to begin in July 2020 will likely also be vacated, Los Angeles Superior Court Judge William F. Highberger said Tuesday.

"We appreciate Judge Highberger's careful consideration and balancing of issues," said Craig S. Simon, managing partner at Berger Kahn and co-lead for subrogation plaintiffs. "He went into the in camera hearing a skeptic and came out a believer. While plaintiffs can be disappointed that the trial date is moved, it's obviously for a good reason."

The Ventura County Fire Protection District, with the help of the California Department of Forestry and Fire Protection, are leading the investigation into the cause and origin of the fire.

Highberger initially expressed frustration with deputy attorneys general Tuesday before the scheduled in camera review as he had to make decisions on whether some or all portions of the causation report should be kept confidential. Those decisions depended on whether the attorney general could discuss if he filed a criminal action against a public investor-owned utility in the last decade, Highberger noted, urging the parties to contribute to the discussion.

Deputy Attorney General Edward J. Skelly offered to respond to the judge's questions in chambers. That's when the judge began expressing his skepticism as to the state's privilege assertion and warned the attorney general's credibility is at stake each time the prosecutors don't respond to one of his inquiries.

He went so far as to ask the state prosecutors if the air they breathe is considered confidential.

After an in camera review, Highberger returned to the bench a changed judge and sided with the state. A redacted version of the report will be made available to all counsel of record in the litigation as "attorneys' eyes only" and subject to protective orders, he ruled.

"I started with a skeptical mind as to the validity of assertion of privilege and wound up persuaded," he said, extending his compliments to Skelly for his professionalism and "good advocacy today."

Highberger ordered Ventura County Fire Protection District and Cal Fire to allow plaintiffs to a non-touching, visual only inspection of all tangible evidence collected at the scene with no photography or other image capture. The inspection must be completed by Oct. 31.

Highberger added he was "pleasantly surprised that Ventura and Cal Fire allowed a tentative inspection at all at this juncture."

A redacted version of the Woolsey report will be available later this week to all counsel. No portion of the report can be disseminated to the public, clients or consultants.

Individual plaintiffs' leadership co-counsel Alexander Robertson of Robertson & Associates asked Highberger to clarify if it was acceptable to the court and all parties that plaintiffs can use the redacted report to conduct discovery, as long as redacted portions aren't revealed, to which no one had any objection.

As long as protective orders aren't disturbed, plaintiffs can proceed on discovery, Highberger agreed.

The next status conference for the Woolsey Fire litigation is Oct. 22 at 1:30 p.m..