The opinion of the court was delivered by: John A. Mendez United States District Judge
Defendant Gateway Unified School District's motion for dismissal, sanctions and/or for disqualification of Plaintiff's counsel Robert A. Thurbon, Jr., and the law firm of Thurbon & McHaney filed November 9, 2011, (Dkt # 46), came on regularly before this court for hearing on December 7, 2011. John P. Kelley, Esq., appeared as attorney for the Defendant, and Jacqueline S. McHaney, Esq., appeared as attorney for Plaintiff. Having read and considered the memorandum submitted by counsel, the attachments thereto, the pleadings and the arguments of counsel, the Court now renders the following memorandum, decision and order.
The Gateway Unified School District (hereinafter "School District") is a K-12 public school district in Shasta County. In January 2009, the Superintendent was John Strohmayer, the Assistant Superintendent/Chief Business Official was Jody Thulin and the Director of Technology was Kendall Lynn. In February 2009, Thulin submitted a letter to the School Board claiming Strohmayer had engaged in improper financial practices. Thulin's claims were investigated by the Board and found meritless.
In the summer 2009, John Strohmayer retired, Robert Hubbell was hired to replace him as Superintendent. Hubbell had no prior affiliation with the School District. Hubbell determined Thulin lacked the qualifications and experience to be Chief Business Official and recommended to the School Board she be reassigned to a teaching position. The Board agreed. Thulin refused the position and instituted civil litigation in Shasta County Superior Court claiming whistleblower retaliating. (The Thulin case). Attorney Robert A. Thurbon, Jr., of the Thurbon and McHaney law firm filed the Thulin case.
When Hubbell took over as Superintendent on July 1, 2009, he informed Lynn there would likely be cuts in the Technology Department, including potentially Lynn's position. Lynn immediately consulted with Thurbon, having been referred to him by Thulin. The initial consultation between Lynn and Thurbon was July 7, 2009.
On August 19, 2010, Hubbell recommended to the Board Lynn's position be eliminated for economic reasons. Both Lynn and Thurbon were present at this Board meeting. Thurbon spoke out against Lynn's layoff. The Board approved the recommendation and eliminated the Director of Technology position. This resulted in Lynn being issued a layoff notice. Pursuant to the Education Code, Lynn was given 45-days notice of his layoff so it was not effective until October 6, 2009; however, Lynn went out on medical leave starting August 24, 2009. Lynn's last day of working was August 21, 2009. Having turned in a note from his doctor stating he would be on medical leave for six weeks, Lynn never returned from his medical leave following August 21, 2009, before his layoff became effective. Believing his layoff was the result of racial discrimination, Lynn is black, Lynn hired Thurbon to pursue this racial discrimination lawsuit in Federal Court.
Late on August 26, 2009, or early morning on August 27, 2009, Lynn made a copy of all of the emails on the School District's server. The server contained the emails of every employee in the entire School District for at least four months. The total number of emails Lynn copied was 39,312. Lynn did not have permission or authority to take these emails, which are School District property. Lynn did not tell anyone he made this copy. The evidence points to Lynn making this copy from home since he was on sick leave, or he returned to the School District office late at night when no one else was present to make this copy. Lynn then started going through these emails looking for ones he hoped would support his racial discrimination case.
As early as October 12, 2009, Lynn started forwarding some of the emails to Thurbon to try and bolster his discrimination case. The emails were sent to Thurbon both electronically and in hard copy (printed) format.
Thurbon has claimed in court documents he researched whether Lynn was entitled to possess the emails before he himself took possession of them. This research has never been identified by Thurbon. After doing this alleged research, Thurbon asked Lynn to send all the emails to his office. Thurbon took possession of the electronic emails in June 2009 and had them loaded onto his office computer. About the same time, Lynn told Thurbon there were emails he thought would help Thulin's case.
In Thulin's case, Lynn's deposition was taken on June 23, 2010. At the time of Lynn's deposition, the School District did not know of his email theft, but emails were discussed for other reasons. Lynn testified all emails on the School District's server were School District property. Lynn also acknowledged he was only allowed to access other employees' emails at the School District if he was given specific permission from the Superintendent. This understanding is confirmed by both former Superintendents Hubbell and Strohmayer, the School Board's technology use policy and the School District's expert. Lynn acknowledged in his deposition he was only asked by a Superintendent to check other employees' emails on two occasions, neither of those occasions would have encompassed the emails the School District later learned he had stolen.
Thurbon was present at Lynn's deposition and heard about Lynn's limited authority to access emails. Four days later, on June 29, 2010, Thurbon had Thulin come to his office and review the electronic emails. Thulin spent four hours searching through the emails looking for ones she thought would be relevant to her case. Thulin printed off 147 pages of emails ("Thulin emails") and gave them to Thurbon. Two of those emails were then used by Thurbon to oppose the School District's motion for summary judgment in the Thulin case.
On June 29, 2010, Thulin was deposed and discussed emails which the School District had not released and which were clearly protected by the attorney-client privilege. Thurbon was present at the deposition, heard her testify about the emails that were clearly protected by the attorney-client privilege, but did nothing to stop the deposition. The next day, June 30, 2010, the School District received Thulin's supplemental discovery responses which included the 147 Thulin emails. It was this date, June 30, 2010, the School District realized there had been a security breach in its email system and ...