San Jose files motion to disqualify in S4SJ lawsuit

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.

26 thoughts on “San Jose files motion to disqualify in S4SJ lawsuit

  1. This litigation has been ugly from the start. These lawyers aren’t fighting over the merits of the lawsuit, they’s just fighting. The early discovery attacks against the plaintiffs/petitioners were ugly, and fundamentally petty. This battle over the probably otherwise inconsequential documents is ugly, and, if not for the ethical issue, it would be petty, too. But that ethical issue — duty to notify opposing counsel when you think you’ve inadvertently received privileged documents — that’s a sharp one. Amazingly, what Pillsbury did was brazenly notify the oblivious lawyers on the other side that they’d waived their right to claim privilege. Then Pillsbury demanded that those lawyers consent to allow Pillsbury to use the documents in the litigation.

    Imagine your neighbor, busy getting his kid out of the back seat, absent-mindedly leaves his laptop bag on the roof of his car. You come home later, see the bag there and grab it. You explore the computer. But some of your efforts are thwarted. You don’t have passwords to the various sites your neighbor visits. So you go next door, ring the bell and when your neighbor answers, you ask him to tell you his passwords, so you can make full use of the computer he inadvertently left outside. I really do not understand why Pillsbury acted as it did.

  2. The Giants may have pressured the controllers office re the ballpark land rollbacks? Do they have that much power at the state level? If this were proven to be true, would most likely be viewed as a major violation under MLB, The Lodge. Thankfully, as discussed yesterday, the rollbacks might actually benefit the A’s and San Jose (or at the least, nothing has changed).

  3. BTW,
    Stand for SF never had a case anyway (see thoroughly completed, certified EIR and worst case traffic studies), so all of this in the end will be rendered moot and a mere footnote in our ballpark saga..

  4. @xootsuit – I agree with. Assuming the facts are what the City claims, I’m surprised by Pillsbury’s conduct here. It sounds like they stubbornly held on to a waiver argument when they should have cooled their jets and just turned over the documents. Not knowing exactly what the privileged documents are, I think it is premature to characterize them as “probably inconsequential.” After all, the documents were important enough that Pillsbury wanted them added to the administrative record.

  5. @mike421,
    I would argue that the privileged documents were “inconsequential” based on the frivolous case SFSF has brought forth. Meaning, their whole premise has been that the EIR was insufficient (whatever that means) as well as the traffic study (which was done for BOTH a 45k seat venue and 32k). What could SFSF possibly be holding onto that is so Earth-shattering against San Jose’s ballpark effort? If San Jose has dotted all i’s, crossed all T’s re the ballpark certified EIR, then there’s no there there..

  6. @Tony D. – Ultimately, you’re probably right.

    Great job again by RM covering this issue.

  7. Challenges to EIRs occur all the time. In fact, mayor Reid said publicly some months back that CEQA litigation is a delay tactic the City is very familiar with, on both sides. (At least that’s what I thought I heard him say in a radio interview.) I don’t know a lot about the merits of the Stand for San Jose claims, but I doubt they’re very strong. One way or another the land deals will get done if mlb approves the move to San Jose.

  8. Its interesting to read that the Giants were still actively lobbying Chiang on this issue, via lawyers and letters, etc. I was under the impression that the Giants were starting to fall in line with the idea of the A’s heading to SJ, with the only issue being compensation. This amount of effort to throw a wrench into a seemingly simple issue regarding land acquisition seems to suggest otherwise, and that in fact they’re still as opposed as they’ve ever been, despite Baer supposedly “quieting down” on the issue publicly. What do you think ML?

    • @JH510 – Duplicity is not a novel concept in this saga. If the Giants can help derail the one San Jose ballpark site and land deal, suddenly any deal to give up the South Bay is off the table. By the same token I’m sure that the A’s are making the motion in part to persuade the other owners and Selig to side with them.

  9. Since MLB has most likely decided on San Jose for the A’s, perhaps trying to thwart the Diridon land deal was the Giants last grasp at keeping the A’s at bay. Again, working/lobbying against one of their own wont look good at all to Selig/MLB. What part of MLB “partnership” don’t the Giants understand? On the other hand, through their workings with Chiang, the Giants made the land deal a whole lot easier for the A’s and San Jose (simple lease instead of outright purchase of parcels, possible no city referendum since no land “discount” on parcels, etc.).

    • @Tony D. – You’re spinning this into something it’s not. The only thing San Jose and the A’s got out of this is a decision. They still have to work a new land deal – whatever that is – and it will need to be approved by the oversight board and the State Controller in the end. It has most certainly not gotten easier.

  10. RM,
    perhaps “easier” was the wrong choice in wording. What I was implying was that it would be more beneficial for Wolff/A’s to lease the acquired plots from the successor agency vs paying $7-29 million cash upfront for purchase. Now they would have more cash available to acquire the remaining parcels or to put towards ballpark construction. And if (or when) the successor agency strikes a land deal with the A’s, there should be no reason for the oversight board or controller to NOT approve.
    FYI, not all properties siezed by the state need to be sold off by the successor agencies to pay down RDA debt. Some will be returned to said cities if the properties serve a civic purpose. So there should be no argument against whether the Diridon plots are leased or sold outright to the A’s.
    Damn Rhamesis, you’re gonna have one hell of a book written regarding this saga when all is said and done..

  11. FWIW, Truman Capote started working on “In Cold Blood” in 1959. He didn’t get an ending for his book until about 7 years later – when the two subjects were hanged from the gallows. ML’s book could already be close to that 7-years-in-development time frame.

  12. @jh510 and all,
    Been thinking, and researching, regarding the Giants apparently lobbying Controller Chiang to seize the Diridon plots. My question: WHEN exactly were the Giants lobbying Chiang? This is an unknown. What is known is the following: RDA ceased to exist in late 2011, at which time San Jose knew the Diridon plots would be fair game for state seizure. Larry Baer/Giants started playing nice around June of 2012, beginning their “no comment” in the media stuff and stating they would abide by the decision of the commissioner/MLB committee re San Jose. Perhaps their active lobbying of Chiang was taking place in late 2011, early 2012, prior to the gag orders and Selig forcing the teams to the table.
    Regardless of when or if the Giants were lobbying Chiang, Wolff has already come out stating they knew this would be the decision re the state and Diridon plots. As has been stated previously: just another item to check off along the way to SJ..

  13. @Tony D. – Reviews of RDA assets didn’t begin until last summer.

  14. Just trying to make sense of it all RM. I guess looking back at the Expos/Orioles/DC saga, Angelo’s was hostile towards MLB/the entire deal till the very end, even voting against the relocation of the Expos to DC. I guess we shouldn’t expect anything less from the Giants in this saga.
    Again, one hell of a book…

  15. Tony d should be a comedian… ima call him Fozy bear… because he always gets a tomato thrown at him…

    San Jose 0
    Oakland 0
    Another State A;s team (possible)

  16. Just tired of California and these anti sports governments.. damn the Raiders, A’s, Warriors, Chargers and Kings need new stadiums… long overdue… i feel that if teams get public funding for new stadiums.. they gotta throw some money back in the community… look at what Arthur Blank is going to do in Atlanta (black) community… he is putting 15mil and that would go a long way, and he could also advertise the team as well… sigh… o well 2014 will give us all closure… because it never rains in southern california.. right tony toni tone??? lol

  17. The Dept. of Finance is taking all the money and property it can get in the RDA dissolution massacre. The idea that any lobbying effort by the Giants played a role is absurd. Of course, if the Giants did lobby, that’s absurd, too. I know of one Bay Area City whose rep in Sac. is very powerful, yet has said, don’t cross Jerry Brown on this. The 49ers decision ML reported on the other day actually may be a turning point. Maybe the AG will turn to settlement mode now and make some reasonable deals. Bottom line is still the same: if mlb gives its approval, the A’s will get their stadium in San Jose.

  18. Agree suit,
    This was a done deal with or without lobbying. And even though (as RM noted) review of assets didn’t start until the summer of 12, I’m sure the city of SJ/Wolff saw the writing on the wall way before then. Wolff himself alluded to this in today’s Merc.


    off topic but maybe ML can make a post for it soon but it looks as the former a’s owners in the haas family who’ve i think completely severed all ties to the a’s themselves as i don’t think they are a sponsor to the a’s at this time but does have a sponsorship with at&t as their rf wall area has their company’s name plastered all over it could be one of the favs to land the new niners stadium naming rights.

    the article above also mentions not thrilled with their deal with the coliseum they just signed for last year.

  20. @letsgoas – Andy Ross is seeing something that isn’t there. As he noted, companies buy domain names all the time for brand protection. Levi Strauss could get back into the naming game, but Ross somehow forgets that the GAP holding Fisher family owns the majority stake in the A’s – so that won’t happen unless Wolff/Fisher sell. The Warriors? Maybe. With all of the concerts that would happen in SF, it makes sense to have a fashion icon like Levi’s everywhere. The GAP and Old Navy sponsored the Giants until Don Fisher divested the family’s stake in the team. The Haas family let go of the A’s well before that point. After GAP left Pac Bell, Levi Strauss filled the void. Don Fisher’s son John teamed up with Lew Wolff to buy the A’s a few years later.

    After Walter Shorenstein and Larry Baer put together the group that saved the Giants for SF, a schism developed over the future of the franchise. Some partners like Shorenstein didn’t want to privately fund a stadium because they thought the revenues wouldn’t support it. Shorenstein sold his stake. Fisher did as well, probably for different reasons. Charles Schwab and Charles Johnson both stayed on.

  21. “RDA dissolution massacre” is a good way to put it. I have no problem in the abstract with the state deciding that RDA could no longer be funded. Value of RDAs to cities/counties/public aside, it is/was the state’s money and it is/was the state’s decision to stop funding it (right or wrong). The problem I have is with the process. This is ugly government. It gave too much carte blanche to state agencies to decide what is right….ultimately leaving a chunk of the massacre/cannibalization process up to the courts to decide what is right or wrong. It ultimately is another case of the common, ‘if you have resources to litigate government’s actions, you may get justice. If you don’t, you’re S.O.L’. It’s really comforting to know that only those people/entities with $$$ can achieve fairness of government action isn’t it?

    The state could and should have made this more black and white, more of a thoughtful cooperative process. And while some litigation is to be expected (normal when big $$$ is involved), when I see the legal system have to tell a state agency that it was attempting to seize assets improperly, it should be of great concern to all. As I see it, the 49ers/Santa Clara clearly had acted appropriately. That the state agency couldn’t see that and took the course of action it did? Wow. It would be great if the state would see this as a call to take a more cooperative approach to the dissolution but I won’t hold my breath waiting for that.

    • 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.

  22. The plaintiffs’/petitioners’ motion has to turn on the contention that the City waived the privileges. Waiver is tougher to establish under state rules than under federal. I look forward to seeing that new brief. But at this point, I’m setting the odds in the City’s favor.

  23. RM,
    The city should just make all “compromised” documents public for everyones viewing. Just to put an end to all this “finders keepers…” nonsense from S4SF.

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