DA: 'Bad faith' in schools case

Battle brews over schools' desire to vet requests seeking school system documents from DA's office
By Janet L. Conley, Associate Editor, 'Daily Report'

The DeKalb County district attorney and King & Spalding are clashing bitterly as multimillion-dollar civil litigation over the DeKalb County School District, the firm's client, becomes enmeshed with the DA's prosecution of former school officials.

In a scathing brief filed on Friday and replete with phrases that have been italicized, bolded or both, DeKalb DA Robert D. James Jr. wrote that King & Spalding and its client showed "bad faith and collusion" and claimed attorney-client privilege "where it does not exist" in discovery-related matters.

The DA's office stopped just short of accusing the firm of making a frivolous bid to halt discovery, implying via carefully placed quotation marks that King & Spalding and the school district engaged in disingenuous legal reasoning: "As with the 'confusion' over adequate remedies at law … it would seem that this Court continues to experience delays due to such 'legal missteps.'"

The legal issue underlying this war of words is whether King & Spalding and its client should be able to vet a third-party discovery request seeking school system documents not from the school system itself, but from the DA's office. Prosecutors had obtained the papers from the school system via voluntary document production, subpoena and seizure following a search warrant.

A key player in this drama is the school system's adversary in the civil case, Heery International Inc., which contends the school system in bad faith terminated its contract to manage school construction projects.

Heery has, in the context of its civil litigation, asked the DA's office to produce documents the DA obtained from the school system in preparation for a criminal corruption case alleging school officials including former Superintendent Crawford Lewis jettisoned Heery and its joint venture partner, E.R. Mitchell & Co., so they could illegally steer contracts to friends. That request came on the heels of Heery's so-far unsuccessful bid to get those same documents via an Open Records Act request.

"This Court should prohibit Heery from obtaining through the back door what it cannot [get] through the front door," wrote King & Spalding partner Robert C. Khayat Jr. That plea came in a motion to prevent the DA from producing the documents until the school district's counsel can review them for attorney-client privilege or work product issues.

But the DA's office responded that the school district has stonewalled discovery all along: "The paucity of documents produced and the improper redacting of documents that were provided forced the District Attorney to obtain search warrants in order to properly investigate its case."

Khayat, in an interview, said his firm was not involved in the production of those documents and always has encouraged the school district to "cooperate as much as possible."

The school district first attempted to protect the documents with a motion for a protective order to the judge in the civil matter, DeKalb Superior Court Judge Clarence F. Seeliger. He heard arguments on the issue in March and, at a suggestion from the DA's office—which Deputy Chief Assistant DA John S. Melvin later retracted—told the schools' counsel he thought they needed to petition for mandamus.

On April 1, the school district filed a petition for mandamus, only to be met by the DA's vehement motion to dismiss. The mandamus, the DA argued, seeks "what is tantamount to preemptive injunctive relief" and is legally insupportable to a degree that the school system must have known.

Khayat responded: "The relief that we're seeking is not in any way frivolous. We're seeking the protection of the attorney-client privilege, which is one of the most sacrosanct privileges in law."
James, did not return a call for comment.

David Rubinger, a spokesman for DLA Piper, the law firm for Heery International, declined to comment because the matter is pending, saying that the DA's filings speak for themselves.

One of those filings, a brief in support of the motion to dismiss the mandamus petition, calls the nature of the petition "haphazard and ill-advised." It links the school district's pushback on discovery requests to "a belief that at least some [school district] officials and employees who are being prosecuted in the Criminal Case cannot be called as witnesses in the Civil Case due to the potential that they may raise their Fifth Amendment privilege."

But the Fifth Amendment doesn't present an absolute bar to calling criminal defendants in civil cases, the DA's office argued. It added in a footnote that the Fifth Amendment shields against compelled self-incrimination, not legitimate inquiry, which means it is the trial court's responsibility "to determine whether the refusal to respond to discovery is within the privilege claimed."
The motion to dismiss then lists at least 25 grounds for dismissal.

Included are suggestions about appropriate means by which King & Spalding could have sought to protect the documents—such as excluding such evidence at the civil trial. The DA also alleged that the school district waived any privilege it had when its counsel contacted lawyers for a defendant in the criminal case.

The DA charged that the petitioned relief—an order "essentially directing the District Attorney to 'pre-clear' responsive documents through counsel" for the school district—can't prevent their public use because they are subject to being filed as discovery. The documents can also be introduced as evidence in the criminal case to which the school district is not a party and has no standing, the DA said.

Also, the DA said, to support a petition for mandamus, the school district must show it would suffer harm, and it hasn't done so.

Instead, the school district "merely incants 'privilege,' failing to identify any particulars," the DA's office argued.

The DA added that King & Spalding took one "desultory swipe" at privilege when it alleged that the DA's office was cooperating with Heery, as the DA produced some of the allegedly privileged documents after the school district filed its motion for a protective order but 24 days before a response was due.

Those affidavits were from Cynthia L. Hill, a lawyer working as a compliance officer with the school district who became a whistleblower and whose affidavits apparently address whether Heery was wrongfully terminated.

The DA's office said the school district's claim of privilege in that affidavit, because it involves "one lawyer speaking to another lawyer," is a "mischaracterization" because Hill "was not seeking or giving legal advice."

The DA analogized that claim to "the same sort of frivolous claims of 'potential privilege' condemned by [the] Federal District Court for the Northern District of Georgia in CBT Flint Partners LLC v. Return Path, Inc. … [where] Judge Thomas Thrash awarded attorney's fees after King & Spalding … made discovery claims that were determined to be, among other things, 'just not true.'"

That case, said Khayat, is irrelevant in the present action. "I think this should be decided on the facts and circumstances here," he said.

The DA's office also alleged that King & Spalding and its client mischaracterized their release of the Hill affidavits as "evidence of some sort of preposterous conspiracy between Heery … and District Attorney James. This tapestry of vitriol is unsupported by anything other than fear and suspicion and is patently false."

In a footnote, the DA's office continued, "Such acrimony is indicative of counsel who not only files suit without legal justification, but who has also lost objectivity."

Khayat denied that his firm acted without legal justification. "The relief that we're seeking is not extraordinary. It's just an opportunity to make any appropriate privilege reviews," he said. "It's standard to review your own documents prior to production, and often in the context of two parties, who for example have contracted together and done so on a confidential basis, it would be ordinary for one to offer the other to review documents prior to a response to a subpoena. Here, it's a little bit different because the district attorney's office seized … some documents, and others were given voluntarily."

Khayat said some of the documents likely are privileged because they reflect the content of meetings between the district and its lawyers. He stressed that his client was not looking for a blanket protective order, only for an opportunity to raise any privilege issues before the judge.

But the DA's office, in its motion to dismiss, pointed to a darker notion, alleging that rather than attempting to satisfy the "towering legal burden" required to support a mandamus, the school district and its lawyers cited law that was "at best, inapposite," and chose to "mischaracterize the facts and law and engage in wild, unsupportable accusations."

The inference the DA's office drew from that tactic in its motion to dismiss: "The American justice system has long observed that how an individual reacts when confronted reflects not only the veracity of the confronting facts, but also the lack of credibility of the one confronted. Georgia law contains voluminous authority for the admissibility of 'adoptive admissions,' 'admissions by conduct' and 'admissions by silence.'

"Applying those principles to this case would lead to one, inescapable conclusion: The school district 'is wrong, they know it and went forward anyway.'"

The case is DeKalb County School District v. James, and Heery Int'l, intervenor, No. 11CV4122.

Correction: The May 4 story "DA: 'Bad faith' in schools case," about the DeKalb County School District's civil litigation, reported that DeKalb Deputy Chief Assistant District Attorney John Melvin during a hearing retracted an earlier statement indicating a petition for mandamus was the appropriate vehicle by which to resolve an aspect of the dispute. Melvin's position is that he maintained that mandamus was the proper vehicle, but said during the hearing that even mandamus would not work because of the right the school system was attempting to exert. Also in this story, the Daily Report reported that David Rubinger was a spokesman for DLA Piper. Rubinger is a spokesman for Heery International, Inc., DLA Piper's client.

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Reprinted with permission from Daily Report