Morrison & Foerster Wants Records From Female Lawyer’s New Firm

Posted September 10th, 2019.

As It Appeared On
Bloomberg

Patrick Dorrian – Bloomberg Law

  • Jane Doe 4 says subpoena to new firm premature and overbroad
  • MoFo says request relevant to ‘negative reference’ retaliation claim

Morrison & Foerster LLP shouldn’t be allowed to obtain employment records from the new firm of a former female associate suing MoFo for alleged sex bias, she told the Northern District of California.

MoFo counters that the information is relevant to Jane Doe 4’s retaliation claims in the proposed nationwide employment discrimination class action against the firm.

The anonymous suit alleges systemic bias against pregnant women and new mothers. Doe 4’s claims include that MoFo provided negative references to potential employers after it learned she was going to pursue discrimination claims against it.

“MoFo’s proposed subpoena is both premature and vastly overbroad,” Doe 4 said in a joint letter brief the parties filed with Magistrate Judge Jacqueline Scott Corley Sept. 9. The proposed class suit, which she joined as a named plaintiff in January, is still in the early stages. MoFo “has barely explored other avenues for” getting the information it says it needs from her current employer, Doe 4 said.

The firm hasn’t deposed her yet and document production is still underway. She hasn’t refused to turn over information regarding her current job, including how much she’s paid, to the extent it’s really relevant to her claims or MoFo’s defenses, Doe 4 said. But MoFo “demands everything,” including documents related to recruitment, hiring, and all other information in her new firm’s personnel file for her, she said.

But Doe 4 put the job applications she filled out after being fired “at issue” by claiming the law firm interfered with her ability to get a new job, MoFo said. Information from her new firm relating to her application for employment, job interviews, and communications with Doe 4’s recruiter “all go directly” to that charge and her general qualifications. So do her new firm’s communications with MoFo regarding Doe 4 and information relating to her job offer, MoFo said.

Courts in the Ninth Circuit “routinely permit discovery of current employment records of named plaintiffs in retaliation cases” the firm said.

Not so, Doe 4 said. Third-party subpoenas directed at a job-bias plaintiff’s new employer typically are “disfavored.” MoFo’s justifications for its proposed subpoena “are fatally inadequate” and speculative. MoFo merely hopes to find information that might undermine her claims, she said.

Sanford Heisler Sharp LLP represents the women. Gibson, Dunn & Crutcher LLP represents Morrison & Foerster.

The case is Doe v. Morrison & Foerster LLP, N.D. Cal., No. 3:18-cv-02542, joint letter brief 9/9/19.

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