Judge: Timothy Patrick Dillon, Case: 21STCV26571, Date: 2022-07-27 Tentative Ruling

Case Number: 21STCV26571    Hearing Date: July 27, 2022    Dept: 73

Department of Fair Employment and Housing v. Activision Blizzard, Inc.

          The court issues its rulings regarding Defendants’ motion to compel further discovery responses from Plaintiff and production of a privilege log (4072).

I.            Special Interrogatories

          Interrogatory Nos. 3, 4, 5, 6, 7, 8, 9, 10, 11, 15, 23:  Plaintiff’s responses to these interrogatories are premature at this point.  Plaintiff has not had the benefit of analyzing the information received from Defendants in discovery.  After Defendants have produced their responsive documents and Plaintiff has sufficient opportunity to review and analyze them, Plaintiff will respond to the interrogatories.  The parties are ordered to meet and confer as to a reasonable and appropriate schedule for responses to these interrogatories.  As part of managing discovery, the court finds that it is more efficient for Plaintiff to respond to these interrogatories once on a comprehensive basis rather than piecemeal.  (See U.S. Equal Employment Opportunity Commission v. Source One Staffing, Inc. (N.D. Ill. 2013) 2013 WL 25033, *1 [“This Court already has ruled that the EEOC is not required to identify by name each member of the so-called class of aggrieved individuals who allegedly were denied job assignments because of their sex, or estimate the damages resulting from this alleged pattern or practice of gender discrimination, before it completes its analysis of Source One’s job assignment and payroll data.  On October 18, 2012 [Dkt. # 57], the Court compelled the production of Source One’s payroll data, and the EEOC’s expert now is reviewing that data.”].)

          Interrogatory Nos. 13, 14:  Plaintiff shall provide a code-compliant responses to these interrogatories.

          Interrogatory No. 16:  The court sustains Plaintiff’s relevancy objections to this interrogatory.  No response is necessary.

          Interrogatory Nos. 19, 20, 21:  The court sustains Plaintiff’s relevancy and vague and ambiguous objections to these interrogatories.  No response is necessary.

          Interrogatory No. 29:  Plaintiff shall provide a code-compliant response to this interrogatory.  Plaintiff objections are overruled.

II.          Document Requests, Set One

Document Request No. 1:  Subject to privilege, Plaintiff shall provide code-compliant responses to these requests and produce the responsive document.

Document Request Nos. 3, 6:  Subject to privilege, Plaintiff shall provide code-compliant responses to these requests and produce the responsive document.

          Document Request Nos. 7, 8:  Subject to privilege, Plaintiff shall provide code-compliant responses to these requests and produce the responsive document.

          Document Request Nos. 16, 19:  Subject to privilege, Plaintiff shall provide code-compliant responses to these requests and produce the responsive documents.  Request No. 19 is limited to communications with the EEOC.

          Document Request No. 20:  The court sustains Plaintiff’s relevancy objection.  No further response is necessary.

          Document Request Nos. 21, 22:  Plaintiff shall provide a code-compliant response to these requests and produce the responsive documents.  All objections are overruled.

          Document Request No. 24:  The court sustains Plaintiff’s relevance objections.  No response is required.

          Document Request Nos. 25, 26, 27, 28:  Subject to privilege, Plaintiff shall produce the documents and code-compliant responses.

          Document Request No. 29:  A response to this request is premature at this point.  The parties are ordered to meet and confer regarding the schedule for a response after Plaintiff has obtained sufficient discovery from Defendants.

          Document Request No. 30:  Subject to privilege, Plaintiff shall provide a code-compliant response and produce all responsive documents.

          Document Request No. 38:  The court sustains Plaintiff’s objections based on the attorney-client privilege, work-product protection, Evidence Code section 1040, and the deliberative privilege.  Plaintiff need not respond to this request.

          Document Request Nos. 40, 41:  Plaintiff shall provide code-compliant responses to these requests and produce all responsive documents.

          Document Request No. 52:  Subject to privilege, Plaintiff shall provide a code-compliant response and produce all responsive documents.

          Document Request No. 53:  The request is limited to communications with Defendants or their representatives.  Plaintiff shall provide a code-compliant response and produce all responsive documents.

          Document Request Nos. 54-58:  Subject to privilege, Plaintiff shall produce code-compliant responses to these requests and produce the responsive documents.

          Document Request Nos. 59-93:  Subject to privilege, Plaintiff shall produce code-compliant responses to these requests and produce the responsive documents.

III.        Document Requests, Set Two

Document Request Nos. 96, 97, 100, 101, 102, 103, 104, 105, 106, 107, 108, 115, 116, 119, 120, 121:  The court sustains Plaintiff’s relevancy objection to these requests.  Defendants do not establish good cause for this discovery.  Defendants seek the discovery in connection with a potential motion to disqualify Plaintiff pursuant to Rule 1.11 of the Rules of Professional Conduct.  Two government lawyers, who worked at the EEOC, went to work for Plaintiff.  At the time the two lawyers worked at the EEOC and also for Plaintiff, Plaintiff and EEOC concurrently investigated Defendants’ alleged unlawful employment practices.  During these investigations, in responses to information requests, Defendants produced documents and gave testimony about their alleged unlawful practices.  Plaintiff and the EEOC coordinated their investigations and shared information. 

To support a disqualification motion, Defendants seek to discover the work these lawyers performed while at the EEOC and in Plaintiff’s employ.  Under Rule 1.11, Defendants maintain that they have standing to disqualify Plaintiff because “a lawyer who formerly served as an employee of the government ‘shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public official or employee.’ ”  However, the lawyers never performed legal services for Defendants; at all times, Plaintiff and the EEOC were adverse to Defendants.  Plaintiff therefore asserts that the discovery is pointless because Defendants lack standing to seek disqualification.   

          The law is solidly against Defendants’ effort.  Defendants have not stated what purpose would be served by disqualifying Plaintiff or identified their “legally cognizable interest that would be harmed.”  There is no basis for the intrusive discovery sought by Defendants.  It is well-established:  “Simply stated, “‘the purpose of a disqualification must be prophylactic, not punitive.’””  (In re Marriage of Murchison (2016) 245 Cal.App. 847, 853 (Murchison).  In Murchison, the court held:  “In fact, we found no case which permits a court to disqualify a lawyer for ethical violations when the nonmoving party wishes to continue the representation and the representation does not harm the opposing party’s interest.”  (Id. at p. 853; see Moreci v. Scaffold Solutions, Inc. (2021) 70 Cal.App.5th 425, 432 [“A party moving to disqualify counsel must have a legally cognizable interest that would be harmed by the attorney’s conflict of interest.”].) 

          Defendants’ four citations are inapposite.  Under various versions of Rule 1.11, the decisions recognize that it might be a bad appearance for a prosecuting government lawyer to acquire confidential information about a target defendant, join a private law firm, and pursue a lawsuit against the target regarding the same matter using that confidential information.  That was the situation in Defendants’ lone California citation; Securities Investor Protection Corp. v. Vigman (C.D. Cal. 1984) 587 F.Supp. 1348, 1367-1368 [“Because I find that Boltz and Hartman are representing a private client in connection with a matter in which both of them participated personally and substantially while employed by the SEC, and because the Commission has declined to consent to such representation, these attorneys and Rogers & Wells must be disqualified from further representation of SIPC in this action.”]; and City of Chicago v. Purdue Pharma L.P. (N.D. Ill. 2014) 2014 WL 7146362, *6 [“Courts and the bar have called it fundamentally unfair for a former government attorney, newly in private practice, to use specific information obtained by the exercise of government power¿information that otherwise would not be available to his or her client¿to the prejudice of opposing private party litigants.  This unfairness exists even if the former client, the government, is not prejudiced by the lawyer’s subsequent use of the information”]. 

          In Defendants’ remaining two citations from Iowa and Kentucky, the court disqualified the former government lawyers because they had switched sides on a matter after they entered private practice; i.e., started representing the target of the government’s efforts.  (See Sorci v. Iowa District Court for Polk County (2003) 67 N.W.2d 482, 494 [“Although one may kindly characterize this situation as an ‘appearance of impropriety,’ in reality these cases are paradigmatic examples of conflicts of interest, plain and simple.  Whether Johnson and the YLC can be disqualified solely on account of a strong appearance of impropriety is an issue we need not decide, however.  As we have discussed, Johnson is disqualified in any case in which she had ‘substantial responsibility.’ ”]; United States v. Villaspring Health Care Center, Inc. (E.D. Kent. 2011) 2011 WL 5330790, *3 [“Rule 1.11 dictates that Melton must be disqualified from further representation in this case.  He represents a client in connection with the same matter in which he participated ‘personally and substantially’ as an Assistant Attorney General, and the government agency has not given its informed consent to the representation.’ ”].)  Here, no one moved from the government to private practice and began using the government’s confidential information to make a profit by suing the same target or switched sides using the government’s confidential information to represent the target in private practice on the same matter, also to make a profit. 

Consistent with preventing a government lawyer profiting in the private sector using confidential information gained from his or her position as a government lawyer, Rule 1.11 (b)(1), when discussing an ethical screen, states that the former government lawyer “is apportioned no part of the fee” and that written notice is given to the government agency.  Contrary to Defendants’ argument, Comment 3 to Rule 1.11 does not help Defendants.  Comment 3 (“Paragraphs (a)(2) and (d)(2) apply regardless of whether a lawyer is adverse to a former client”) is consistent with the holdings in Securities Investor Protection Corp. v. Vigman, supra, 587 F.Supp. 1358 and City of Chicago v. Purdue Pharma L.P., supra, 2014 WL 7146362.  There is nothing in Rule 1.11 that gives Defendants standing.  Thus, Defendants have not cited any authority to overcome the well-established standing rules for disqualification motions.  Moreover, Plaintiff’s disqualification would not make any sense because Plaintiff and the EEOC were simultaneously investigating Defendants’ alleged unlawful employment practices.  Information can be freely shared between the federal and state agencies.  (See 42 U.S.C. 2000e-8(d).)

          Far from promoting the public interest, any attempt to disqualify Plaintiff strongly conflicts with public policy.  For example, in Department of Fair Employment and Housing v. Law School Admission Council, Inc. (N.D. Cal. 2013) 941 F.Supp.2d 1159, the court held:  “The legislature of the State of California has vested DFEH with the authority to enforce the civil rights of California citizens as ‘an exercise of the police power of the state for the protection of the welfare, health, and peace of the people of this state.’  Cal. Gov’t. Code § 12920.  ‘[S]ince 1959 the DFEH has been actively investigating, prosecuting and conciliating’ complaints of discrimination falling within those areas under its jurisdiction.  State Pers. Bd. v. Fair Employment & Hous. Com., 39 Cal.3d 422, 431, 217 Cal.Rptr. 16, 703 P.2d 354 (1985).  FEHA, the California statute that created DFEH, ‘was meant to supplement, not supplant or be supplanted by, existing antidiscrimination remedies, in order to give [Californians] the maximum opportunity to vindicate their civil rights against discrimination.’  Id. at 431, 217 Cal.Rptr. 16, 703 P.2d 354. See Cal. Gov’t. Code § 12993(a) (‘Nothing contained in this part shall be deemed to repeal any of the provisions of the Civil Rights Law or of any other law of this state relating to discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, or sexual orientation, unless those provisions provide less protection to the enumerated classes of persons covered under this part”); Id.   (‘The provisions of this part shall be construed liberally for the accomplishment of the purposes of this part.’).  FEHA’s declared purpose is ‘to provide effective remedies that will eliminate these discriminatory practices.’  Cal. Gov’t. Code § 12920.  See Munson v. Del Taco, Inc., 46 Cal.4th 661, 666, 94 Cal.Rptr.3d 685, 208 P.3d 623 (2009) (‘[t]he Unruh Civil Rights Act,’ incorporated into FEHA via Cal. Gov’t. Code § 12948, ‘must be construed liberally in order to carry out its purpose to create and preserve a nondiscriminatory environment in California business establishments by banishing or eradicating arbitrary, invidious discrimination by such establishments.’) (internal citations and quotation marks omitted).”  (941 F.Supp.2d at p. 1167.)

          In Department of Fair Employment and Housing v. Law School Admission Council, Inc., supra, 941 F.Supp.2d 1159, the court further held:  “The California Supreme Court has recognized that ‘DFEH is a public prosecutor testing a public right,’ when it pursues civil litigation to enforce statutes within its jurisdiction.”  (Id. at pp. 1167-1168.)  The court continued:   “Like Title VII, FEHA empowers DFEH to ‘prevent any person from engaging in any unlawful practice as set forth in the [statute],’ id. at 323, 100 S.Ct. 1698, and ‘specifically authorizes [DFEH] to bring a civil action,’ id. at 324, 100 S.Ct. 1698, in the role of a ‘public prosecutor testing a public right,’ State Pers. Bd. v. Fair Employment & Hous. Com., 39 Cal.3d at 444, 217 Cal.Rptr. 16, 703 P.2d 354.  In bringing enforcement actions, DFEH acts ‘not merely [as] a proxy for the victims of discrimination,’ but also ‘to vindicate the public interest in preventing [certain forms of] discrimination.’ ”  (941 F.Supp.2d at p. 1169.)

IV.        Disposition

Plaintiff shall provide a descriptive log regarding any documents withheld on grounds of privilege.  Compliance within 30 days.