* On April 3, 1995, Judge Hall ordered the city to turn over Ileana Fernandez's entire working file on the Tinseltown matter "based on the insufficiency of the evidence supporting the privileges claimed," Figari's brief stated. The judge gave the city a two-week window in which to file an appeal of his ruling to a higher court. The city didn't bother.
* On August 10, 1995, Hall allowed Fernandez to be deposed. Although the city's attorneys did not allow her to answer questions regarding a November 17, 1993, private meeting between herself, Donna Blumer, Mayor Steve Bartlett, and others, they allowed a former city employee who attended that meeting to testify about it in another deposition.
* Shortly after Fernandez was deposed, the city made the claim for the first time since the lawsuit was filed that the individual council members were entitled to assert individual privileges regarding the memorandum and other documents. (This too-little-too-late argument came only after Duncan recruited Michael Jung, who, free of charge to the taxpayers, began trying to repair some of the damage Vial, Hamilton had done on this issue.)
Robert Brown argues that the deck was stacked against the city at the point Luna leaked the memo. "The public records show that we took the position that it was a privileged document and that we should not be forced to answer questions regarding it," Brown says. "That argument was not successful with the judge. The judge ruled, in essence, the cat's out of the bag, and once it's out of the bag, there is not a way to reclaim it."
Then came Sam Lindsay's deposition on October 19, 1995.
Understand that it is highly unusual for the city attorney to be deposed in a lawsuit. Therefore, when Cinemark insisted on deposing Lindsay--and Vial, Hamilton couldn't come up with a good enough legal argument to prevent it--Judge Hall decided to preside over the deposition in his chambers, a practically unheard-of arrangement.
During the deposition, Vial, Hamilton dutifully raised some privilege objections to certain questions that were asked, but Hall overruled virtually all of them. In fairness to the city, though, the judge ordered Cinemark's attorneys out of the courtroom during some of Lindsay's answers, and he gave the city time to appeal the judge's rulings on the privilege to a higher court.
On November 2, Vial, Hamilton's Robert Brown filed the city's appeal. Attached to it was a complete transcript of Lindsay's deposition--which he filed unsealed.
"Typically, when you file things under seal, you go through a pretty complicated procedure to make sure it gets sealed," says Donald Colleluori, Ernie Figari's partner. "We took a shot that that wasn't done...and sure enough it wasn't...The judge let us check it out, and we brought it back to our office and made a copy."
Faced with nothing to rule on--if there was a privilege, the city's own lawyers had waived it--the appeals court ruled against the city.
"The failure to seal the deposition when your purpose is to prevent its production to the other side--and the resulting waiver of that--is just indefensible," says Johnston. "That's exactly the kind of mistake that Ernie Figari will kill you on. He's the greatest tactician of rules and procedures I've ever known."
The bottom line is that the city could have hired just about any lawyer for $1 million. Sam Lindsay picked Vial, Hamilton. He did it, he says, partly on the basis of some prior work the firm did for the city, and because a number of firms he contacted, he says, claimed a conflict of interest with Cinemark that precluded them from taking the case.
Although Lindsay says he is pleased "overall" with Vial, Hamilton's work on the Cinemark case, he is obviously extremely displeased with the way in which his deposition was handled.
"The matter was addressed," is all he says, explaining that until two other Cinemark-related suits against the city are disposed of--both of which Vial, Hamilton is handling--he can't comment freely about the firm's performance. "I can't tell you everything that I may do or recommend, if anything. But before it's all over, I'll have something to say about some issues--and on others I won't. And that's probably more than I should say about this.
