Introduction

Statement of Facts

Pay Equity Studies Performed at LLNL from 1989 though 1998

Documents and Information Withheld on the Ground of Attorney-Client Privilege

Argument

A. The Defendant Has Improperly Invoked the Attorney-Client Privilege to Prevent Discovery Concerning the Post-1992 Pay Equity Studies

1. The Post -1992 Pay Equity Studies Are Not Privileged

2. Conversations Regarding and Recollections of the Post-1992 Pay Equity Studies Are Not Privileged

3. The Underlying Raw Data for the Post-1992 Pay Equity Studies Is Not Privileged

B. The Defendant Has Waived Any Purported Privileges As To the Pay Equity Studies By Putting The Reasonableness of Its Efforts to Prevent Discrimination In Issue

INTRODUCTION

By this motion plaintiffs seek the production of certain salary studies central to their claims of unequal treatment in pay and promotions at the Lawrence Livermore National Laboratory (hereafter “LLNL” or the “Lab”). Based on an exceedingly thin claim of attorney-client privilege, defendant has attempted to hide the results of those “pay equity” studies, and has refused to allow any discovery concerning them. The studies at issue were conducted annually during the period of 1993 through 1998 for the purpose of identifying inequities between the salaries and ranking of white male employees and those of female and minority employees. Although defendant now asserts that the studies were conducted “at the direction of” counsel, it simply cannot carry its burden to show that the dominant purpose of the pay equity studies was to convey a confidence within the context of an attorney-client relationship. The evidence in fact shows that the studies were undertaken and maintained for a clear management-oriented purpose: essentially to monitor and ensure equal opportunity in its workplace.

Although defendant asserts the attorney-client privilege only for those studies conducted since 1993, the pay equity studies have been conducted by LLNL’s Human Resources Department on at least an annual basis since 1989. Documents and testimony demonstrate that the studies were initiated at the direction of LLNL’s Director, not its counsel, and that the results of the studies were purportedly used by management to assess whether pay equity goals had been met, and were circulated widely to inform managers’ annual salary distribution decisions. At best, the evidence suggests that counsel for the defendant served as a conduit through which the work of non-attorneys was channeled, as an afterthought, in an attempt to cloak the studies with the protections of the attorney-client privilege. A note from the defendant’s files, described in more detail below, shows that this would not be the first time the defendant injected an attorney into a “situation” in order to circumvent disclosure requirements.

Not only has the defendant resisted the discovery of documents relating to the studies, but it has also tried to foreclose discovery regarding the memories of witnesses who saw or heard about the results of the studies or discussed the studies with others. The defendant has also withheld from production the raw data used in connection with the studies. Such information falls well outside of the scope of any conceivable attorney-client communication, however, and should be discoverable as the recollections of independent witnesses and/or underlying facts relating to an event at issue.

Finally, the defendant has waived any ability to assert the privilege with respect to the pay equity studies by asserting as an affirmative defense that it acted “reasonably” with the intent of preventing discrimination. The plaintiffs should be entitled access to the pay equity studies, which may well help show that the defendant failed to act reasonably in light of the inequities its own studies revealed.

Accordingly, this Court should grant the plaintiffs’ motion to compel.

STATEMENT OF FACTS

LLNL is a national research facility managed and operated by defendant Regents of the University of California (hereafter “Regents”) , pursuant to a contract with the United States Department of Energy. The plaintiffs herein allege that the defendant has discriminated against female employees at the Lab by paying them less than comparable male employees and by denying and limiting their opportunities for advancement as compared to male employees. After unsuccessfully attempting – for more than two decades – to persuade the management of LLNL to recognize and correct the pervasive and systemic discrimination against women at the facility, the plaintiffs filed suit alleging, in relevant part, violations of California’s Fair Employment and Housing Act, Government Code § 12940 et seq., and Equal Pay Act, Labor Code § 1197.5, on behalf of all similarly situated female employees of LLNL.

Pay Equity Studies Performed at LLNL from 1989 though 1998

Over 2,000 of the 6,500 employees at the Lab are women. As early as the late 1970s, female employees began to perceive the existence of gender-based discrimination at the Lab, and formed a Salary Study Committee within the Lawrence Livermore National Laboratory Women’s Association (“LLNLWA”) specifically for the purpose of studying the apparent salary disparities between comparable male and female employees. For the next ten years, LLNL management repeatedly promised to conduct an analysis of salaries at the facility in response to the advocacy efforts of the LLNLWA’s committee, but failed to fulfill its promises. In 1988, after the LLNLWA’s committee presented LLNL management with evidence of the discrimination in the form of their own salary studies, then-Director John Nuckolls finally directed that the issue of salary disparities be examined. (Am. Compl., 33(a)-(e).)

At the direction of Director Nuckolls, LLNL hired an outside consultant, John Davis, to develop a statistical model by which to assess the pay equity of protected class members, including women and minorities. (Ex. L (Croft Dep. Tr., 328:25-330:4); Ex. U at LLNL 011141.) [1] Using Mr. Davis’ statistical model, the Human Resources Department of LLNL conducted a pay equity study for Fiscal Year 1989. (Ex. L (Croft Dep. Tr., 326:11-327:1; 328:25-329:24); Ex. Q at LLNL 011265.) The study was conducted by Norton Croft, a former compensation manager of LLNL who had left the Lab in the mid-1980s, and who was rehired by the human resources manager in connection with implementation of the study. (Ex. L (Croft Dep. Tr., 63:20-25, 96:22-97:10, 106:15-20, 330:5-13).) Mr. Croft collaborated with other employees of the Human Resources Department in conducting the study, and consulted with “a number of managers and salary committee members from around the Laboratory,” including the scientists and engineers’ salary committee, the technical salary committee, and the administrative salary committee. (Ex. L (Croft Dep. Tr., 330:5-331:6; 338:11-339:3).) According to Mr. Croft in his deposition, LLNL management initiated the pay equity study with five goals in mind: (1) to “[v]alidate the job-relatedness of existing ranking or performance assessment systems”; (2) to “[u]nderstand how protected class members are distributed in ranking or performance arrays”; (3) to “[i]dentify factors which may differentially affect the contribution or performance of white males and protected class members”; (4) to “[i]mplement changes in human resources systems necessary to correct the differential effects above”; and (5) to “[i]nstall a monitoring system to ensure on-going equal opportunity.” [2] (Ex. L (Croft Dep. Tr., 332:3-19; 334:3-335:16); Ex. R at LLNL 09821.) There is no evidence that the LLNL legal department directed, approved, or was at all involved in the implementation of the study. (See Ex. L (Croft Dep. Tr., 338:11-340:2).) The Fiscal Year 1989 study was the first of a series of LLNL studies that analyzed pay equity issues on an annual basis over the next decade, until at least 1998 (the year this lawsuit was filed). According to a 1988 memorandum from Mr. Croft and the human resources manager, Helga Christopherson, the LLNL director was “committed to continuation of the [pay equity] study over the longer haul.” (Ex. S at LLNL 9858.) The 1989 study was purportedly intended to “install a monitoring system to ensure on-going equal opportunity,” the first of many “annual recheck[s]” of the pay equity between white males and protected class members, which was “to protect against ‘backsliding.’” (Ex. Z; see also Ex. R at LLNL 009821.) Another memorandum, authored by Mr. Croft and dated May 8, 1990, described the “Pay Equity Monitoring Process” and identified the tasks to be undertaken “each year” in order to produce a salary analysis for the year. (Ex. Q at LLNL 011273.)

Like the 1989 study, the pay equity studies for Fiscal Years 1990, 1991, and 1992 were conducted by the Human Resources Department, pursuant to the direction of Lab Director Nuckolls. (See Ex. P (More Dep. Tr., 86:3-87:24).) A report of one such study acknowledged that “females are paid statistically significantly lower than males by $110.46/month on average.” (Ex. T at LLNL 006811.) The studies were used to “provide information to the organizaton[al units] as part of their salary management process,” so their results were communicated orally and in writing to all the associate directors in charge of the various departments, including the Lab’s 11 “directorates.” (Ex. U at LLNL 011141, LLNL 011257; see also Ex. U at LLNL 011139, LLNL 011170; Ex. Q at LLNL 011273.) The studies were purportedly intended to give managers the tools to “provide an understanding of the root causes of . . . pay inequities, [ ] illuminate a variety of resolutions from a peer group and overall basis,” and resolve pay equity issues. (Ex. U at LLNL 011263.) The Human Resources Department also used presentations given to Lab management regarding the studies as an opportunity to hear from associate directors regarding “workforce issues,” including issues related to “salary management practices” and the Lab’s ranking system. (Ex. V.)

In or around 1992, the Human Resources Department “borrowed” mathematician Ralph Carlson from the Computation Directorate in the Lab, giving him primary responsibility for the pay equity studies. (Ex. N (Pehrson Dep. Tr., 135:1-136:8).) Mr. Croft had been “reassigned to work on some other areas,” and, as the deputy human resources manager testified, Mr. Carlson “picked up where [Mr. Croft] left off” on the project. (Ex. M (Rogers Dep. Tr., 331:11-24).) Mr. Carlson continued Mr. Croft’s prior practice of circulating the studies’ results to the Lab’s department managers. (Ex. N (Pehrson Dep. Tr., 152:10-23); Ex. O (McLeod Dep. Tr., 34:20-36:5; 37:10-18).) And, as in past years, the essential purpose of the studies Mr. Carlson conducted supposedly was to monitor and determine the status of equal opportunity at the Lab. LLNL’s human resources manager testified, for example, that Mr. Carlson’s studies were intended “to point out to the individual directorates, in a statistical sense, whether any new issues [with regard to pay equity] were developing,” and were used to determine whether salaries should be adjusted for equity purposes. (Ex. N (Pehrson Dep. Tr., 530:3-531:25).)

Documents and Information Withheld on the Ground of Attorney-Client Privilege

Pursuant to the plaintiffs’ discovery requests, the defendant has produced documents regarding the pay equity studies conducted for Fiscal Years 1989, 1990, 1991, and 1992. Nevertheless, the defendant has refused to produce documents, or permit other discovery, concerning any pay equity studies conducted for Fiscal Year 1993 and thereafter. [3] Those studies, the defendant claims, were not conducted at the direction of the Lab director as they had been in the first four years, but were instead conducted “at the direction of” the Lab’s in-house counsel. (See, e.g., Ex. M (Rogers Dep. Tr., 337:23-338:5).) According to the defendant, in-house counsel “requested” the pay equity studies conducted by Mr. Carlson after Fiscal Year 1992. (See, e.g., Ex. N (Pehrson Dep. Tr., 136:15-19).) On that basis, the defendant claims that documentation of and raw data for the post-1992 studies, as well as conversations regarding those studies (regardless of whether counsel was present), are protected from disclosure by the attorney-client privilege. Yet aside from bald assertions of the privilege, the defendant has provided no evidence to show that counsel in fact directed the post-1992 studies, or that oversight of the studies was ever shifted from the Director to in-house counsel.

Indeed, memoranda produced by the defendant suggests that no such shift of oversight responsibilities occurred during Fiscal Year 1993, as the defendant tries to claim. (Ex. W; Ex. X.) Referring to “FY 93 raw data” and an upcoming implementation of the “Compensation Division monitoring model,” one memorandum stated: “At the Director’s request, the Compensation Division will continue monitoring pay equity of the Laboratory at the institutional and directorate levels.” (Ex. W (emphasis added).) Another memorandum with a subject line stating “FY 1993 Salary Review” was authored by Director Nuckolls and claimed that “Pay Equity will have very high priority,” and that he had directed the Compensation Division to work with the associate directors and program leaders of LLNL in order to “fix all of the rank vs. pay inequities for [their] women and minority scientists and engineers in th[at] Fall’s salary change process.” (Ex. X at LLNL 009699 (emphasis in original).)

The plaintiffs seek to compel disclosure of three categories of information related to LLNL’s post-1992 pay equity studies:

First, the plaintiffs seek discovery of any written work product relating to, reports of, or conclusions of the pay equity studies conducted after Fiscal Year 1992. Accordingly, the plaintiffs seek production of the nine reports and one “viewgraph” concerning the post -1992 pay or rank equity studies that the defendant’s privilege log identifies as withheld from production on the basis of the attorney-client privilege. [4] (Ex. E.) The plaintiffs also seek to compel LLNL employees to answer deposition questions regarding their knowledge of the studies, or more specifically, regarding (1) the methodology used by Mr. Carlson in connection with his pay equity studies; (2) the content of or conclusions drawn in documents concerning the pay equity studies, created by Mr. Carlson or shown to LLNL employees by Mr. Carlson; and (3) the form of the documents concerning the pay equity studies, created by Mr. Carlson or shown to LLNL employees by Mr. Carlson. For the Court’s convenience, a list of deposition questions on these subjects that LLNL witnesses declined to answer on the basis of attorney-client privilege is contained in Sections A-C of Exhibit F attached to the Declaration of Mark T. Johnson in Support of Plaintiffs’ Motion to Compel, submitted herewith. [5]

Second, the plaintiffs seek to compel LLNL employees to answer deposition questions regarding the content and/or purpose of conversations between or among LLNL employees about the pay equity studies, even when counsel for LLNL was not present. For a list of questions on these subjects that LLNL witnesses declined to answer on the basis of attorney-client privilege, see Exhibit F.

Third, plaintiffs seek disclosure of the “raw data,” apparently used in connection with the studies conducted in 1996, 1997, 1998, and 1999, that is identified on the defendant’s privilege log. (Ex. E.)

ARGUMENT

Without question, the post-1992 pay equity studies are relevant to the case because their results may prove one of the plaintiffs’ central allegations in the case: that pay and/or rank disparities existed between women and men at LLNL. Morever, the studies may yield crucial evidence of intentional discrimination, a required element of plaintiffs’ disparate treatment claim, because they likely show that LLNL management long had knowledge of and yet repeatedly failed to remedy or prevent barriers to equal pay and employment for female employees. See Hardy v. New York News Inc., 114 F.R.D. 633, 642-43 (S.D.N.Y. 1987) (noting that documents that analyzed the employer’s utilization of minority employees were “clearly relevant” on the issue of discriminatory intent in an employment discrimination case because they could show that the employer had long been on notice of minority underutilization); cf. Cloud v. Superior Court, 50 Cal. App. 4th 1552, 1560 (1996) (finding that an employer’s affirmative action plan was “probative” of the plaintiff’s claim of gender bias and therefore “relevant” for purposes of discovery). The only question, therefore, is whether the defendant is entitled to hide such crucial evidence for the plaintiffs’ case. As will be explained below, the defendant has no basis to claim that the entire subject of the post-1992 pay equity studies should be shielded from scrutiny by the attorney-client privilege.

1. The Defendant Has Improperly Invoked the Attorney-Client Privilege to Prevent Discovery Concerning the Post-1992 Pay Equity Studies.

In an attempt to hide what could be substantial evidence of the Lab’s knowledge of long-standing salary disparities between men and women at the Lab, the defendant has asserted that the post-1992 pay equity studies – and documents or conversations related to them – are protected by the attorney-client privilege. The defendant’s position amounts to a claim that entire subject of the Lab’s six or seven most recent salary equity studies should be shielded from discovery merely based on its unsupported assertion that an attorney suddenly, and inexplicably, became involved in the annual salary studies, four years after the studies first began. However, like the studies conducted between 1989 and 1992, the post-1992 studies are not privileged under the attorney-client privilege principally because the defendant cannot show that the post-1992 studies were conducted for any purpose other than the business, or management-oriented, purpose of monitoring equal opportunity at the Lab. Furthermore, the recollections of independent witnesses as to the studies and underlying facts regarding the studies are clearly not protected by the privilege. Accordingly, the defendant should be required to produce all documents, and answer all questions, regarding the Lab’s post-1992 pay equity studies.

1. The Post -1992 Pay Equity Studies Are Not Privileged.

The defendant has improperly withheld from production nine reports and one viewgraph concerning the post-1992 pay equity studies (see Ex. E), and instructed its employees not to answer questions that might reveal the methodology of those studies or the substance or form of documents concerning those studies (see Ex. F). In D. I. Chadbourne, Inc. v. Superior Court, 60 Cal.2d 723 (1964), the California Supreme Court enunciated the standards by which to determine whether a report or statement by a corporation’s employee to the corporation’s attorney is a privileged attorney-client communication. Rejecting the corporation’s claim of privilege, the D. I. Chadbourne Court recognized that even though a corporation can speak only through a natural person, that natural person may be speaking from either the status of a client, or an independent witness. Id. at 732. Thus, the Court explained, the privilege does not necessarily attach to every report or statement made by a corporate agent and furnished to the corporation’s attorney. Id.

Under D. I. Chadbourne, the question of whether the privilege applies to a report that is made by an employee who is not a co-defendant and whose connection with the matter grows out of his employment, insofar as he is required by his employer to make the report, “is to be determined by the employer’s purpose in requiring the same.” Id. at 737. Such a report may be privileged only “if the employer direct[ed] the making of the report for confidential transmittal to its attorney.” Id. To the extent that the corporation had more than one purpose in directing its employee to make a report or statement, then the “dominant purpose will control, unless the secondary use is such that confidentiality has been waived.” Id. That is, the communication will be privileged only if the “dominant purpose” is for “transmittal to an attorney ‘in the course of professional employment.’” Holm v. Superior Court, 42 Cal.2d 500, 507 (1954) (citations omitted).

The corporation, as the party claiming protection under the attorney-client privilege, carries the burden of showing the facts necessary to justify application of the privilege. D. I. Chadbourne, 60 Cal.2d at 729. Indeed, only the party asserting the privilege is in a position to submit the “full facts” to support the privilege. Safeway Stores, Inc. v. Superior Court, 193 Cal. App. 2d 270, 274 (1961). Because the privilege is an exception to the general rule requiring disclosure of all relevant facts, the privilege should be strictly construed. Greyhound Corp. v. Superior Court, 56 Cal. 2d 355, 396 (1961); Brown v. Superior Court, 218 Cal. App. 2d 430, 437 (1963).

Two federal cases are particularly instructive here. In Hardy v. New York News Inc., 114 F.R.D. 633 (S.D.N.Y. 1987), the plaintiffs were employees who alleged, in part, that their employer discriminated against nonwhites with respect to salary, promotion, and conditions and privileges of employment. Id. at 635. Invoking the attorney-client privilege, among other claims of privilege, the defendant refused to produce documents sought by the plaintiffs that included work force analyses, comparative labor pool statistics, and memoranda pertaining to the development of an affirmative action plan. Id. at 636, 645. The defendant claimed that such documents were prepared “at the direction of attorneys for the purpose of obtaining legal advice.” However, the defendant submitted no contemporaneous evidence indicating that the documents were actually prepared in light of threatened litigation, and the defendant’s witnesses submitted affidavits stating that the documents were prepared in connection with a work force analysis conducted annually. Id. at 637-39.

Although not explicitly applying the “dominant purpose” test endorsed by D. I. Chadbourne, the Hardy court considered at length the purpose for which the disputed documents were created in analyzing the defendant’s claim of attorney-client privilege. The court rejected the defendant’s claim, finding that the “primary purpose” of the documents was to develop an affirmative action plan and further long-range management policies, and that they were at best “incidentally” used to prepare for threatened litigation. Id. at 644-46. The court found significant that many of the disputed memoranda “were addressed to over 15 different non-attorney managers,” and specifically noted that “[t]he fact that [an employee] was required to prepare annual updates of the [work force] analyses demonstrates their essentially management purpose.” Id. at 645 (emphasis in original).

Similarly, in Resnick v. American Dental Assoc., 95 F.R.D. 372 (N.D. Ill. 1982), another employment discrimination case, the court found that a “personnel practices study” conducted by an outside consultant and documents regarding the activities of an Ad Hoc Liaison Committee on Employee Relations were not protected from disclosure by the attorney-client privilege. Id. at 374-75. Despite the defendant’s claim that the study and the Committee’s creation were undertaken “with the advice and assistance of counsel,” the court found that the purposes of the study and the Committee were “essentially management-oriented for [the defendant]’s overall business purposes,” and that the lawyer-client relationship was “no more than tangential” to the studies. Id. at 375.

Here, the evidence clearly shows that the true purpose – much less the “dominant purpose” – of the reports concerning the post-1992 pay equity studies was not for the sake of transmitting confidences to LLNL’s attorneys, as the privilege requires according to D. I. Chadbourne. The evidence shows that the purpose of the studies conducted in Fiscal Year 1993 and thereafter, as stated at the time, was to allow management to continue to monitor the fairness of the salary distribution at the Lab on an annual basis, essentially the same purpose for which the previous four reports were purportedly generated. [6] (See, e.g., Ex. R at LLNL 009821; Ex. Z.) For example, in apparent anticipation of the Fiscal Year 1993 study, an internal memorandum reported, “[a]t the Director’s request, the Compensation Division will continue monitoring pay equity for the Laboratory . . . .” (Ex. W (emphasis added).) The memorandum further stated that for Fiscal Year 1993, “the Director . . . will be using the Compensation Division monitoring model to assess whether or not [pay equity] goals will be met.” (Id.) Although staffing for the pay equity studies did change after 1992, LLNL’s deputy human resources manager admitted that Mr. Carlson had “picked up where [Mr. Croft] left off” with respect to the studies. (Ex. M (Rogers Dep. Tr., 331:11-24).)

Moreover, the defendant’s own witnesses testified that the results of the annual studies by Mr. Carlson were communicated to all the associate directors, and claimed that the associate directors were so informed for the purpose of helping them determine whether “salary fixes” should be made during the annual salary review. (Ex. O (McLeod Dep. Tr., 34:20-36:5; 37:10-18); Ex. N (Pehrson Dep. Tr. 530:3-531:18).) A human resources manager at LLNL specifically testified that the purpose of the post -1992 studies was “to point out to the individual directorates, in a statistical sense, whether any new issues [with regard to pay equity] were developing.” (Ex. N (Pehrson Dep. Tr., 530:3-531:18).) The defendant’s privilege log conveniently ignores the fact that the reports were discussed with, if not distributed to, all of the Lab’s managers, claiming instead that the reports at issue were only directed to the “Office of Laboratory Counsel.” (See Ex. E.)

There is simply no evidence on the record that reports of the post-1992 studies were created for the purpose of receiving legal advice or directed to counsel in the context of a confidential attorney-client communication. The defendant has attempted to argue that documents concerning the first four pay equity studies – which have been produced – should be treated differently from documents concerning the last six or seven such studies because in-house counsel allegedly “directed” the more recent studies. However, the defendant heretofore has provided no explanation as to why in-house counsel abruptly began “directing” the studies in or around 1993. As in Hardy, the fact that the pay equity studies were conducted on an annual basis, and that they were distributed to non-attorney management employees, constitutes compelling evidence that the post-1992 pay equity studies furthered a management purpose, rather than an attorney-client confidence. Indeed, the evidence in favor of disclosure is stronger here than in Hardy, because the evidence also shows that the post-1992 studies were a continuation of a series of admittedly non-privileged studies, and direct testimony confirms that the studies were supposedly used to further the management goal, as articulated by the Lab’s director, of pay equity in the workplace.

Furthermore, it is axiomatic that documents that are otherwise not privileged do not become privileged merely because they are turned over to counsel. D. I. Chadbourne, supra, 60 Cal. 2d at 732; San Francisco Unified School Dist. v. Superior Court, 55 Cal. 2d 451, 457 (1961). Here, insofar as in-house counsel was the nominal recipient of the post-1992 pay equity reports, counsel appears at best to be a mere conduit through which management channeled studies that were, until Fiscal Year 1993, handled entirely by non-legal personnel. See Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 485 (D. Kan. 1997) (“The fact that the client chose to channel the work through an attorney rather than perform the work with non-legal personnel does not provide the basis for a claim of [attorney-client] privilege.”); United States Postal Service v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 164 (E.D.N.Y. 1994) (“A corporation cannot be permitted to insulate its files from discovery simply by sending a ‘cc’ to in-house counsel.”). A typewritten note produced in discovery demonstrates that Lab management knew precisely how to channel information through counsel in an attempt to avoid disclosure. The note, apparently addressed to Director Nuckolls, proposes an approach for responding to the LLNL Women’s Association: “[Helga, the human resources manager,] . . . would suggest Bill DeGarmo write to either herself or Steve Yarbroff [the compensation division manager] and ask to have an examination of the situation with attorney-client privilege, to protect the information from freedom of information requests until management has an opportunity to review it and decide how to act. If you agree with this, Helga will work with Bill to get the letter written.” (Ex. Y at LLNL 026711.) Bill DeGarmo presumably was an attorney for LLNL.

In short, the defendant’s bald assertion of privilege is an insufficient basis upon which to exempt the post-1992 studies from discovery. See Safeway Stores, Inc. v. Superior Court, supra, 193 Cal. App. 2d at 274. (“If the privilege can be asserted merely by the easy and inadequate incantation of self-serving conclusionary words, the discovery procedures can be partially nullified.”). This Court should order the defendant to produce the documents concerning pay equity studies that were withheld on grounds of privilege, and to answer deposition questions regarding those studies (identified in Sections A-C of Exhibit F).

2. Conversations Regarding and Recollections of the Post-1992 Pay Equity Studies Are Not Privileged.

Defendant’s counsel has also refused to allow questioning as to conversations between or among LLNL employees concerning the post-1992 pay equity studies, even where counsel was not present during the conversation. (See Ex. F.) For the reasons stated above, the studies themselves and the reports related thereto are not privileged. Accordingly, conversations regarding the studies are also not privileged, particularly where no attorney was even present to establish the necessary attorney-client communication.

Even assuming, arguendo, that the reports concerning the pay equity studies were privileged communications, the defendant’s employees who have given deposition testimony should be required to answer questions regarding their recollection of and discussions concerning the pay equity studies. In D. I. Chadbourne, the California Supreme Court stated:

When an employee has been a witness to matters which require communication to the corporate employer’s attorney, and the employee has no connection with those matters other than as a witness, he is an independent witness; and the fact that the employer requires him to make a statement for transmittal to the latter’s attorney does not alter his status or make his statement subject to the attorney-client privilege.

D. I. Chadbourne, 60 Cal.2d at 737. The Court emphasized that even where a corporation is the client-litigant, “a litigant may not silence a witness by having him reveal his knowledge to the litigant’s attorney.” Id. at 708. In other words, just as a natural person cannot ask a witness to speak to his or her attorney and then claim that conversation to be privileged, so too a corporation cannot shield from discovery all of the recollections of the independent witnesses in its employ by having those witnesses speak to its attorney. See Martin v. Workers’ Compensation Appeals Bd., 59 Cal. App. 4th 333, 346 (1997). Otherwise, a corporation would have broader protection by way of the privilege than a natural person, which would violate the principles set forth in D. I. Chadbourne, 60 Cal.2d at 738. In the instant case, the LLNL employees deposed were nothing more than independent witnesses to the events at issue – the post-1992 pay equity studies. Regardless of whether those studies were privileged, and regardless of whether those employees spoke to counsel regarding the studies, those employees should be required to answer questions regarding their discussions and recollections about the studies.

Even if those employees were not considered independent witnesses, but considered as “clients” who speak for the corporation, see D. I. Chadbourne, 60 Cal.2d at 737, those employees should still be required to answer questions regarding their knowledge of the studies. The attorney-client privilege protects against the disclosure of communications, but it does not protect against disclosure of the underlying facts by those who communicated with an attorney. Upjohn Co. v. United States, 449 U.S. 383, 395, 101 S. Ct. 677, 685 (1981); see also Greyhound Corp., supra, 56 Cal.2d at 397 (“Knowledge which is not otherwise privileged does not become so merely by being communicated to an attorney.”) (citation and quotations omitted). Thus, while a client may not be required to answer the question, “What did you say or write to the attorney?” he or she may be required to disclose any relevant fact within his or her knowledge, even if that fact was disclosed to the attorney. Upjohn Co., supra, 449 U.S. at 395-96, 101 S. Ct. at 685-86 (citation and quotations omitted). Where conversations with counsel are found to be privileged, independent facts related to the conversation (such as time, date, and participants), the facts referenced within the conversation, and the employee’s observations during the conversation are still discoverable. State Farm and Casualty Co. v. Superior Court, 54 Cal. App.4th 625, 639-41 (1997). Conversations outside of the presence of counsel are not privileged unless the party claiming the privilege establishes that the specific conversations were at the direction of counsel. Id. at 641. The defendant herein has attempted to block discovery even as to underlying facts, and has failed to make any particularized showing that each allegedly privileged conversation was specifically in the presence of or at the direction of counsel.

Therefore, the defendant’s witnesses should be compelled to answer questions concerning the pay equity studies, including those questions identified in Exhibit F.

3. The Underlying Raw Data for the Post-1992 Pay Equity Studies Is Not Privileged.

Finally, the defendant has improperly asserted that the raw data used for the post-1992 pay equity studies is privileged and therefore protected from discovery. (See Ex. E.) As noted above, otherwise unprivileged facts do not become privileged merely because they are communicated to counsel. Greyhound Corp., supra, 56 Cal.2d at 397. Raw data is the quintessential example of underlying facts that should not acquire a privileged status upon being communicated to an attorney. Indeed, in the present case, the raw data that defendant has withheld is likely to be salary and rank information for public employees that is public information pursuant to California’s Public Records Act, Government Code § 6250, et seq. Such information was never confidential or privileged, and should not be shielded from scrutiny simply because they were allegedly passed along to Lab counsel.

Therefore, the defendant should be ordered to produce the raw data used for the post-1992 pay equity studies.

The Defendant Has Waived Any Purported Privileges As To the Pay Equity Studies By Putting The Reasonablenessof Its Efforts to Prevent Discrimination In Issue.

Assuming, arguendo, that the pay equity studies at issue are privileged, the defendant has waived any applicable privileges with respect to those studies, because it has put the reasonableness of LLNL’s equal opportunity efforts in issue. For its Sixth Affirmative Defense, the defendant claims that the plaintiffs’ causes of action are barred because “[d]efendant[] took all reasonable steps necessary to prevent any discrimination from occurring . . . .” (Ans. at 3.) What steps were “reasonable” under the circumstances depends in part upon whether and how much the defendant knew about the existence of gender discrimination in pay and ranking at the Lab. The Sixth Affirmative Defense therefore puts in issue the defendant’s own evaluation of its equal opportunity efforts, in the form of the pay equity studies. The defendant should not be allowed to claim that it had only good intentions, and yet hide evaluations that might undercut its portrayal of how “reasonable” its efforts were to establish pay equity. The plaintiffs should be entitled to test the defendant’s defense of “reasonableness” and should have complete access to studies that may show that LLNL was aware of its equal pay and opportunity problems, but failed to remedy those problems.

CONCLUSION

For the foregoing reasons, and based upon the evidence submitted herewith, the plaintiffs respectfully request that the Court grant the plaintiffs’ motion to compel.

Notes:

[1] References to “Ex.” herein refer to the exhibits appended to the Declaration of Mark T. Johnson in Support of Plaintiffs’ Motion to Compel (“Johnson Decl.”), submitted herewith.

[2] “Ranking” refers to a policy and practice at LLNL by which LLNL employees, in all departments, divisions, job series, or job classifications, are compared to one another each year and “ranked” in terms of their relative value or contribution to the organization. Rank is principal factor by which LLNL managers determine annual salary adjustments. (Ex. M (Rogers Dep. Tr., 120:22-121:10, 293:13-17).)

[3] The term “pay equity studies” as used herein, unless otherwise specified, is intended to encompass any “rank equity studies” conducted by LLNL. On a privilege log, the defendant has indicated that it has withheld from production at least one such “rank equity study.” (Ex. E.)

[4] These documents, as well as the “raw data” identified on the privilege log and also sought herein, were responsive to several of plaintiffs’ document requests, including Requests No. 14 and 31 of Plaintiffs’ First Set of Requests for Production of Documents (Ex. A) and Request Nos. 71, 72, and 88, of Plaintiffs’ Second Set of Requests for Production of Documents. (Ex. C.)

[5] The relevant portions of the deposition transcripts can also be found within Exhibits M, N, and O.

[6] Because discovery is ongoing, the plaintiffs expressly reserve their right to supplement these papers with additional evidence, as it is developed.

June 11, 2001

Respectfully submitted,

THE STURDEVANT LAW FIRM

A Professional Corporation

GWILLIAM, IVARY, CHIOSSO, CAVALLI & BREWER

TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.

By: _________________________________

Mark T. Johnson

Attorneys for Plaintiffs

JAMES C. STURDEVANT (SBN 94551)

MARK T. JOHNSON (SBN 76904)

THE STURDEVANT LAW FIRM

A Professional Corporation

475 Sansome Street, Suite 1750

San Francisco, California 94111

Telephone: (415) 477-2410

Facsimile: (415) 477-2420

J. GARY GWILLIAM (SBN 33430)

KIMBERLY M. DRAKE (SBN 209090)

GWILLIAM, IVARY, CHIOSSO, CAVALLI & BREWER

1999 Harrison Street, Suite 1600

Oakland, California 94612

Telephone: (510) 832-5411

Facsimile: (510) 832-1918

ARTHUR BRYANT (SBN 208365)

VICTORIA NI (SBN 212443)