In the well-known gender and pregnancy discrimination case against the firm Morrison & Foerster, LLP (MoFo), MoFo will now be able to access a portion of its accusers’ personnel files from other firms. 

The decision in William v. Morrison & FoersterLLP, No. 18-cv-02542-JSC (N.D. Cal. Apr. 2, 2020) resolved a dispute about MoFo’s subpoenas to two law firms that are presently or were previously the plaintiffs’ employers.  The subpoenas sought the plaintiffs’ full personnel files, including documents and communications regarding the plaintiffs’ job performance at these law firms.  For instance, the subpoena to plaintiff Joshua Klayman’s current firm, Linklaters, generally sought documents regarding her current compensation and benefits and the subpoena to plaintiff Sherry William’s former firm, Freshfields, sought documents regarding the decision to classify her as part of the class of 2011 and not 2010.

The Plaintiffs opposed the subpoenas in their entirety and argued, among other things that:  the subpoenas implicated their privacy interests; MoFo already had access to the information they requested through testimony and produced documents; and the discovery MoFo sought would be inadmissible.  Although the court recognized that the documents at issue in the subpoenas would implicate the plaintiffs' privacy interests, the court refused to quash the subpoenas in their entirety.  While the court rejected MoFo's request for plaintiffs' entire personnel files, it allowed MoFo to seek certain documents related to plaintiffs' performance at these other firms, which the court ordered produced subject to a protective order.

The court's decision is notable for two reasons.  First, the decision underscores the tricky, but necessary, distinction between what is discoverable and what is admissible, and the rights of adversaries to gain access to private, sometimes sensitive, documents nevertheless relevant to the dispute.  Second, the decision highlights that in an employment dispute between a law firm and a lawyer who previously worked at the firm, the lawyer's performance at subsequent firms may be relevant to the dispute, especially where the lawyer's reasons for leaving or being discharged from the firm are put at issue.