Posted September 10th, 2019.
By Vin Gurrieri
Law360 (September 10, 2019, 2:44 PM EDT) — A female lawyer who claims Morrison & Foerster LLP sabotaged her efforts to find work after she accused the firm of putting pregnant women on a “mommy track” says MoFo’s “wildly overbroad” subpoena for employment records from her new firm is a fishing expedition.
But MoFo argued in a joint letter brief the parties sent to California federal Magistrate Judge Jacqueline Scott Corley on Monday that it needs the information from the new firm where its former attorney, identified in court filings as Jane Doe 4, now works in order to adequately refute her claims.
MoFo said that Doe 4 put information about the process by which she was hired at her new firm as well as her job performance once she got there on the table by accusing MoFo of trying to undermine her job search.
Doe 4, who is one of seven lawyers to sue MoFo in a proposed sex discrimination class action, has accused the firm of undermining her job prospects at multiple BigLaw firms in retaliation for her claiming she was illegally fired after getting pregnant.
“The subpoena to Doe 4’s current employer is narrowly tailored to obtain information that is relevant to both her claims and Morrison’s defenses,” the firm said. “The subpoena is not, as plaintiffs charge, ‘sweeping.’ Rather, it narrowly seeks documents probative of how her application materials, interview performance, and skill and performance in her ‘specialized field’ were perceived and evaluated by the law firms to which she applied.”
However lawyers for Jane Doe 4 called MoFo’s subpoena “premature and vastly overbroad” and said it doesn’t come close to meeting the legal test for requiring a nonparty to produce information.
“While plaintiff’s full employment records at her current employer are of, at most, tangential relevance to her claims of reputational damage, defendant’s effort to obtain those irrelevant records threatens to compound that damage,” Doe 4 said in her portion of Monday’s letter brief. “MoFo’s speculation that combing through the current employer’s files might somehow reveal ‘party admissions’ or material impugning plaintiff’s credibility is also an inadequate justification for the exercise. Courts do not permit the use of subpoenas to troll for evidence impugning a plaintiff’s credibility.”
Doe 4 acknowledged that her income from her new firm is “relevant to mitigation of damages” in her suit against MoFo, but added that she has already given her former firm documents that include information about her earnings. She also noted that she has yet to be deposed and “is willing to cooperate” to give MoFo any information covered by the subpoena at issue that is “genuinely relevant and necessary” for the firm to defend itself against her claims.
“MoFo’s subpoena, however, demands everything and more: It seeks Jane Doe 4’s complete personnel file, ‘any and all other documents relating to [her] job performance, disciplinary record, compensation, and benefits’ at her new employer, and all other documents and communications related to her recruitment and hiring,” Doe 4 said. “MoFo’s proffered justifications for this all-encompassing demand are fatally inadequate.”
Doe 4 urged Judge Corley to quash MoFo’s proposed subpoena and require the firm to obtain court permission before issuing any more subpoenas to businesses where plaintiffs in the class suit have worked.
Elsewhere in Monday’s joint letter, MoFo brushed aside Doe 4’s contention that the subpoena to her new firm amounts to a violation of her privacy, saying it was crafted in such a way that “only a small subgroup at her current employer needs to respond, and only essential information is sought.”
“Her principal objection to the subpoena is that it identifies her as someone who has sued her employer, but without her Doe designation, that would be public,” MoFo said. “This case is now positioned such that a very narrow disclosure of Jane Doe’s identity is warranted to avoid tying Morrison’s hands in its ability to defend itself. There is no alternative means to obtain the information, which is relevant to her claims and Morrison’s defenses.”
MoFo sent Doe 4 a revised subpoena in July that it categorized in Monday’s letter brief as a compromise between the parties’ dueling positions. The subpoena itself was filed with redactions to keep the identities of Doe 4 and her current employer out of public view.
A representative for MoFo and counsel for the plaintiffs each declined to comment Tuesday.
Originally filed last year by three California-based attorneys and most recently amended in May, the class action accuses MoFo of consigning pregnant attorneys to a “mommy track” that hinders their pay and advancement prospects and sometimes leads to them losing their jobs.
The suit also alleges the firm maintains an “old boys’ club” culture that favors men and childless women by easing their paths to partnership.
Doe 4, who joined the suit in January, has claimed MoFo fired her because of her pregnancy in late 2017 — less than two months before her due date.
She subsequently had promising interviews with Pillsbury Winthrop Shaw Pittman LLP, Goodwin Procter LLP and Baker McKenzie, but those firms later mysteriously withheld job offers, she said. Doe 4 alleged in May’s amended suit that MoFo “sabotaged her employment prospects by providing negative references in retaliation for her decision to pursue legal action against the firm.”
The Does are represented by David Sanford, Deborah Marcuse, Andrew Melzer, Ed Chapin and Jill Sullivan Sanford of Sanford Heisler Sharp LLP.
Morrison & Foerster is represented by Rachel Brass, Daniel M. Bruggebrew, Catherine Conway and Michele Maryott of Gibson Dunn & Crutcher LLP.
The case is Jane Doe 1 et al. v. Morrison & Foerster LLP, case number 3:18-cv-02542, in the U.S. District Court for the Northern District of California.
–Additional reporting by Braden Campbell.