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If the Belmont Project is the Los Angeles Unified School District’s Vietnam, as a combatant suggested, what’s going on in pretrial discovery qualifies as one long firefight. Ten months ago, the school district boldly sued its locally based counsel of 31 years, O’Melveny & Myers, for legal malpractice. The suit alleges the blue-chip firm is to blame for years of disastrous decisions that built the nation’s most expensive school — the half-finished, $170 million Belmont Learning Complex — over an oil field that seeps explosive methane gas and contains toxic hydrogen sulfide. Facing massive cash exposure and the ignominy of being branded the uptown lawyers whose mistakes condemned generations of inner-city children to outdated and crowded classrooms, O’Melveny’s defense has been to lay down a barrage of covering fire for itself and its real estate partner, David Cartwright. O’Melveny has gone beyond defending Cartwright against allegations that his advice was faulty and skewed by multiple conflicts of interest. The law firm has become an advocate for the project, arguing not only that those who championed Belmont were correct, but also that the only blame in the fiasco lies with politically motivated critics who prematurely halted the school’s construction. “This is the full-court press, scorched-earth, leave-no-stone-unturned discovery of all time,” says Steven Williams of Burlingame, Calif.’s Cotchett, Pitre & Simon, one of two big-name plaintiffs firms the district recruited early this year. “Virtually every motion the defense has filed has included a request for sanctions.” O’Melveny’s lead attorney, Robert Cooper of Los Angeles-based Gibson, Dunn & Crutcher, calls that an exaggeration. But he’s also not about to argue what’s going on is usual in high-ticket litigation. “We’ve literally had to fight — as in filing motions to compel — to achieve what in almost any other case would be ordinary discovery,” Cooper says. “The district seems to have forgotten that they are the plaintiff.” In other words, if O’Melveny’s defense strategy is take the offensive, it’s working. TESTING OTHER SCHOOL SITES One school district beachhead that crumbled had to do with environmental testing on other school sites. O’Melveny wants to go into schools that have been operating without mitigation for decades and test for the gases that the state has said make the new Belmont site dangerous. After losing a couple of motions to stop the tests, Williams says the district has decided it can live with them. “It’s totally irrelevant to the court case anyway. It’ll never be allowed in,” he reasons. “You can hardly tell the state Department of Toxic Substance Control to ignore its current standards because the standards were violated in building a school 50 years ago.” If O’Melveny is able to amass such information, he adds, the only use would be in the campaign outside the courtroom to try to get the school completed. Cooper insists such information might make it into evidence. The political uses, however, are undeniable. O’Melveny partner Ralph Shapira has become the defense’s point man in the unabashed effort to win the hearts and minds of those who could pressure the school board into reconsidering its January decision to abandon the project. All media inquiries to the defense are supposed to go through Shapira, and he lobbies newspaper editorial boards and other groups with the message that most of greater Los Angeles is built on old oil fields, and the risks are easily mitigated. Last week the school board voted to resume environmental testing on the Belmont site, a first step toward reviving the project — and toward vindicating O’Melveny, regardless of what happens in court. Last week, too, O’Melveny won on the legal front when the discovery referee, Eli Chernow, ordered the district to hand over interviews conducted by the district’s internal investigators, who in September urged the district to sue O’Melveny. Of course, it’s early and the thorniest issues lie ahead for O’Melveny. Williams indicates it will be months, if not longer, before Cartwright is deposed about memos now in school district hands in which the O’Melveny partner appears to begrudge even lip service to the California Environmental Quality Act, while leaving the district on the hook in its negotiations with developers for any environmental clean-up costs. And then there is the matter of conflicts. Cartwright and O’Melveny got a signed conflict waiver stating that the school district knew, and didn’t care, that the development partnership Cartwright favored — Temple Beaudre Partners — was dominated by another major O’Melveny client, Kajima International. That waiver may speak to a lawyer’s professional conflict, the district says, but Cartwright had another role, that of an ad hoc politician. As such, the argument goes, he should not have sat on the panel that chose Temple Beaudre because his law firm had a back-door financial stake in the choice. That said, discovery has so far gone well for O’Melveny. The uncashed sanctions checks from the district that Shapira holds — two for $6,500 ordered by the court, a third that the parties agreed to for $5,000 — represent more than mere trophies. “We’ve won almost every motion we’ve made,” Cooper boasts. The “almost,” Cooper acknowledges, is because O’Melveny didn’t get all it wanted when it subpoenaed information from the Hotel and Restaurant Employees Union Local 11, which the law firm maintains has worked behind the scenes to sink the project because of Kajima’s ownership interest in the anti-union New Otani Hotel in downtown Los Angeles. The discovery referee ruled the union’s third-party communications were fair game, but internal discussions with the school district were off limits. Here again, however, what could have been an O’Melveny loss turned out to be a wash. The referee issued a mirror image ruling, telling the school district it could have only third-party communications involving the public relations firm O’Melveny has hired, Cerrell Associates. RESOLVING INTRACTABLE ISSUES Chernow, the referee, is a retired Los Angeles Superior Court judge, known on the bench for his settlement skills. It is a measure of the respect he commands that neither side has yet appealed one of his holdings to the assigned judge, Alan Buckner. The combatants bring their most intractable disputes to Chernow every two weeks, alternating the turf between each other’s law firm conference rooms. Two big issues were formally before Chernow on July 27. First was the matter of a trial date. O’Melveny wants more time, and its papers say it could require more than 100 more depositions. “Document production isn’t over yet,” explains Shapira. “We are talking about very complex dealings, over a decade, with billing by dozens of contractors and subcontractors.” That’s ridiculous, responds Williams. “They know it all already, they were there through it all,” he says. Besides, he adds, nothing could match the law firm’s institutional memory, since O’Melveny built itself in the 19th century representing land title companies when the oil fields were begun — so, if anyone knows literally where the methane is buried, it is O’Melveny. Faced with O’Melveny’s request for an April 2002 trial and the school district’s target of April 2001, Chernow recommended January 2002. Also, the school district had balked at handing over the interviews that went into the writing of the Mullinax report, a 600-page internal review prepared by the district’s audit chief. Released in September just days before the district filed suit, it chronicles purported sweetheart deals — that is, the worst that has been alleged against O’Melveny’s Cartwright. The interviews may serve as an early set of depositions of the important players, Shapira says. “It could be a gold mine of information.” The school district, however, contended the interviews, many of which were taped, are absolutely privileged as attorney-client work product that was compiled with the help of the Los Angeles office of Seattle’s Preston Gates & Ellis. Chernow granted qualified privilege to the interviews, triggering a balancing of O’Melveny’s need to defend itself against the intrusion into the district’s inner workings. As early as last January, the referee warned the district it would have a “rough row to hoe” in such balancing tests, given the publicity against O’Melveny and the amount of money at stake. Chernow ordered the district to turn over the Mullinax interviews. Perhaps the best measure of how important the discovery process has become is the talent that both sides have put in the field. Cooper is no stranger to bet-the-store litigation. In 1993, he rescued American Airlines from potentially fatal predatory pricing claims by besting trial stars Joseph Jamail and David Boies. More recently, he has successfully represented Hewlett-Packard and Intel. “I do big litigation,” says Cooper, who is attending some of the discovery sessions and overseeing the rest. On the district’s side, stability would seem to be an issue. The client has been a moving target, what with the latest superintendent on the job barely a month, and two members of the school board having been voted out. The plaintiff’s team started with just Los Angeles’ Weston, Benshoof, Rochefort, Rubalcava, MacCuish. But when O’Melveny’s blizzard of defense subpoenas engulfed them, major reinforcement arrived in the form of Joseph Cotchett Jr. and Thomas Girardi. Their firms — Cotchett, Pitre & Simon and L.A.-based Girardi and Keese — are known for sky-high verdicts. And, finally, some continuity is returning in the form of lawyer Howard Miller, who this week confirmed he is returning as a consultant on the litigation. As chief operating officer for the district, it was Miller who helped to make the decision to take on O’Melveny in the first place.

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