Update 3/23 1:30 AM – Pillbury made its own motion in response. They’re aiming to “augment the administrative record; memo of p’s and a’s” (points and authorities), so they’re providing their defense of their behavior in the case. I’ll try to get a copy of the motion ASAP.
There’s a fairly new term being used in baseball talk on the internet these days: TOOTBLAN. It’s short for Thrown Out On The Bases Like A Nincompoop. It’s very popular on Twitter, and its lineage dates back to some misadventures on the basepaths by Ryan Theriot, who naturally was on the Cubs when the term was coined. When it comes to baserunning, Theriot is the polar opposite of Coco Crisp, whose recent profile by Grantland’s Jonah Keri elevated Coco to ninja-like levels between the bags. Still, Theriot has two World Series rings in the past two years, so who’s the nincompoop now? Well, it’ll forever be Theriot. Sorry dude.
The City of San Jose committed its own TOOTBLAN in the Stand for San Jose lawsuit. During the suit’s discovery period, the City inadvertently released several documents that clearly should have been protected by attorney-client privilege. When City attorneys found out, they asked S4SJ’s attorneys at Pillsbury to return the documents. Instead, Pillsbury held onto the privileged docs and sought to augment their own case with the documents. That forced the City to file a temporary restraining order against Pillsbury, which was granted by a judge in January 2012. Suspecting that Pillsbury lawyers would use the information anyway, last week (3/11) the City filed its own motion to disqualify counsel (read the PDF for the blow-by-blow), saying that Pillsbury’s conduct during discovery should force them off the case. From the motion:
By this motion, respondents and real party in interest seek disqualification of Pillsbury Winthrop Shaw Pittman LLP (“Pillsbury”) from further involvement in this case. Pillsbury attorneys closely examined and attempted to use nine privileged documents inadvertently produced by the City of San Jose. Pillsbury was ethically obligated not to review these documents any more than necessary to determine they were privileged and to immediately notify the City of its possession of the documents. In derogation of these obligations, Pillsbury not only reviewed the privileged documents in their entirety and failed to notify the City that it possessed them, it refused to return the documents after the City discovered the inadvertent production and requested that the documents be returned. Instead, Pillsbury affirmatively sought to incorporate the documents into the administrative record in this case and use the information in them to support petitioners’ claims, threating a motion to augment the record if they were not included. The City was forced to bring a TRO and preliminary injunction proceeding, which resulted in an order requiring Pillsbury to return the privileged documents and all copies. The documents contained highly confidential attorney/client communications and attorney work product bearing directly on the issues in this case. Pillsbury’s possession of this information prejudices the defense of this case, and there is no effective remedy short of disqualification.
I consulted with some folks who have a better grasp of the legal issues here. Apparently the motion to disqualify counsel is not something that is successfully granted often, and any such claims have to pass a fairly stringent test to force such an action. At the same time, the inadvertent release of privileged or confidential information during discovery isn’t all that uncommon, given the reams and boxes of documents that have to be made available for a trial. Still, this is an embarrassing moment for the City and it seems like they want to be rewarded for making a pretty big mistake.
The documents in question include marked up versions of the EIR, analyses and comments from the City Attorney’s office, and to my surprise, a draft of a Disposition and Development Agreement – effectively the lease terms for the ballpark and/or land. Frankly, I want to see this information and the public should have the right to see it. For now, records requests may have to be filed to gain access, and that may not happen until after a trial ends. Regardless, it’ll be interesting to see how Judge Hubner rules on this next month. Just like last fall’s motion to compel, this is a long shot at best, but Pillsbury’s conduct could result in sanctions if not disqualification. If Pillsbury were thrown off the case, S4SJ would be forced to bring in new counsel and prepare a new case, creating considerable delay. Plus the new legal team wouldn’t be the Giants’ own firm. Considering how the Giants may have pressured the Controller’s office to take actions against San Jose in the ballpark land rollback, just about anything’s fair game at this point. The hearing will be at Santa Clara County Superior Court on April 12, 9 AM. I expect to be there for the proceedings.
Note: I spent a couple of fruitless hours at the Superior Court trying to get a copy of the motion, because it hadn’t been properly filed yet. I strolled a few blocks over to City Hall and went to the City Attorney’s office to request a copy. I received it via e-mail within an hour of the request.