Metropolitan News-Enterprise


Tuesday, June 27, 2006


Page 1


C.A. Shields District Attorney From Discovery of Reports Pertaining to Santa Monica Farmers Market Accident


By TINA BAY, Staff Writer


A district attorney cannot be compelled to produce documents compiled by other agencies pursuant to a subpoena for discovery of business records in a civil action, the Court of Appeal for this district ruled yesterday.

Div. One granted a writ of mandate sought by District Attorney Steve Cooley, who argued that he could not be compelled to comply with a subpoena duces tecum seeking records of a joint investigation by the Santa Monica Police Department and California Highway Patrol into the 2003 incident in which an elderly driver killed 10 pedestrians at the Santa Monica Farmers Market.

The district attorney and his staff cannot be required to produce documents they did not compile, because they cannot attest to their authenticity and trustworthiness, the justices explained.

The subpoena was issued by attorneys for Melissa Greenstein, a plaintiff in one of the suits resulting from the incident, in which George Weller drove his car on a street that was blocked off to traffic.  The accident, which resulted in many serious injuries in addition to the fatalities, resulted in Weller’s prosecution for vehicular manslaughter and gave rise to a slew of civil actions against him, the City of Santa Monica, and related entities. 

The attorneys served a subpoena on the District Attorney’s Office after unsuccessfully seeking the items from the city.

Steven Archer of Robins, Kaplan, Miller & Ciresi, an attorney for Greenstein, told the MetNews that the documents, which included investigative reports, statements by Weller, photographs, field interview notes, and results of tests or examinations, were necessary to explore inconsistencies that arose in initial discovery between witnesses’ deposition testimony and their typed statements contained in the 914-page traffic accident report prepared by a joint investigation team of the city police and CHP. 

“In deposing the percipient witnesses, the defense would take their typed statements from the report and question them about it, and many of the witnesses would say, ‘That’s not what I told the police officer,’ ”Archer explained.   “So we then had to go back to the court to get the field interview notes and all the other documents that served as a foundation for the police report,” Archer said.

But the District Attorney’s Office objected, arguing it was not the “custodian” of the records because it was unable to comply with Evidence Code Sec. 1561, which requires that business records produced pursuant to a subpoena must be accompanied by a custodian’s affidavit stating, among other things, the records’ “identity” and “mode of preparation.”

Los Angeles Superior Court Judge Valerie Baker ruled that the District Attorney’s Office could comply, but the Court of Appeal disagreed.

Writing for the panel, Justice Robert M. Mallano wrote:

“At first blush, it would seem that a person or entity that maintains records would also be the custodian of those records.  Nevertheless, the custodian of records or other qualified witness contemplated by Evidence Code section 1561 must also be able to attest to various attributes of the records relevant to their authenticity and trustworthiness.  As such, execution of a 1561 affidavit is more than simply a clerical task.”

Mallano pointed to the uncontested assertion by the District Attorney’s Office that it did not prepare or generate any of the documents covered by the subpoena.

Archer questioned the panel’s reasoning.

“What this decision seems to say is, ‘Well, the D.A. cannot attest to the foundation for the documents and the D.A. cannot lay a foundation that makes those documents admissible, ’” he commented. “While that may be true, the Civil Discovery Act and SDTs are used to get documents to lead to the discovery of admissible evidence.  If I need to get that report or any piece of it admitted at trial, I can go back to the author of the report to lay the foundation.  I don’t need the D.A. to be able to do that.”

Archer said Greenstein and other plaintiffs ultimately obtained the documents from the city concurrent with the writ, but said he found the panel decision troubling, explaining:

“The SDT that was served on the D.A. didn’t say, ‘Produce what the city gave you.’  What the SDT said was, ‘Produce what you, the D.A., collated and produced to Weller in the companion criminal case.  There was no one else that was in the position to produce that body of documents.”

In the criminal case, he explained, the city and CHP had given material to prosecutors, which they then partially produced to Weller’s attorneys.

 “This is an accident case,” Archer said. “This little old man stepped on the wrong pedal and the accident occurred.  It’s not a crime.  But for almost four years, the D.A. has been stalling on taking this case to trial.”

Archer noted that prosecutors unsuccessfully attempted to block the CHP’s production of the original accident report in 2004.

The case is Cooley v. Superior Court (Greenstein), 06 S.O.S. 3241.


Copyright 2006, Metropolitan News Company