But if assessing the likelihood of a successful lawsuit is a valid legislative purpose that enables a city to prediscovery, then, to take one example, a motorist who negligently crashes into city property could be served with legislature subpoenas asking about the driver's financial assets, driving record and drinking habits. This information, normally thought to be private, would allow a city to factor into its budget how much it could recover from that driver. Another city might decide to see whether McDonald's was vulnerable to a lawsuit for peddling high-fat foods to kids, based on its internal documents, for any additional health care and education costs the city incurred as a result. Courts are understandably reluctant to second-guess legislative bodies when they exercise their legislative powers, which includes the authority to subpoena information useful to legislators. But legislative bodies have never before been considered to have unlimited power to discover the private information of their future litigation opponents.
Litigation is normally the responsibility of executive officials, subject to judicial supervision.
If the California Supreme Court blesses Lodi's inquiry, from now on, savvy city attorneys will get a head start on their lawsuits by having an ally on the city council first serve legislative subpoenas. Indeed, given the advantages cities will have as litigants, plaintiffs' lawyers will team up with cities even more frequently to advance their objectives. If Lodi gets its way, no business will be safe from a city's snooping. Daniel E. Troy is a Washington lawyer and an associate scholar at the American Enterprise Institute. He represents the insurers who were subpoenaed in this action.