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Jody Thulin v. Gateway Unified School District

August 14, 2012


(Super. Ct. No. 167034)

The opinion of the court was delivered by: Raye , P. J.

Thulin v. Gateway Unified School Dist. CA3


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Did the trial court abuse its discretion by disqualifying plaintiff's lawyer and his law firm from representing her in a wrongful termination lawsuit after the lawyer directed plaintiff to review almost 40,000 e-mails purloined by one of the lawyer's other clients from their mutual employer, the Gateway Unified School District? The lawyer, Robert E. Thurbon, argues he should not have been disqualified as a matter of law because the three e-mails he read were not privileged, the potentially privileged e-mails were segregated and sealed by independent counsel, and the remaining e-mails were public records and discoverable. The trial court rejected Thurbon's logic that the "ends justify the means." We conclude the trial court chose a difficult but justifiable course in the exercise of its inherent authority to protect the integrity of the judicial process by refusing to dismiss plaintiff's lawsuit, as requested by the district, but removing the lawyers who fell short of practicing the high ethical standards expected of servants of the law. We affirm.


In May 2008 plaintiff Jody Thulin became assistant superintendent of business and chief business official for the Gateway Unified School District (District). The superintendent was John Strohmayer. In a memo to the school board and the superintendent in February 2009, Thulin accused Strohmayer of improper and illegal financial practices. The board hired a lawyer, Jeff Kuhn, to investigate her charges.

On June 1, 2009, Strohmayer sent two e-mails that could be important in the ensuing litigation between Thulin and the District. In both e-mails, Strohmayer referenced the difficulties surrounding Thulin. Thulin would later characterize the e-mails as "smoking guns."

Strohmayer retired on June 30, 2009. Robert Hubbell, the incoming superintendent, interviewed members of the existing administrative team. He asked each of them the same 10 questions, including Thulin. Thurbon accompanied Thulin to her meeting with Hubbell. After the interview, Hubbell concluded that Thulin was not a good fit for his administrative team and recommended to the board that she be reassigned to another position. The intricacies of his rationale, while highly relevant to the pending appeal of the summary judgment granted the District, are not relevant to the instant appeal.*fn1 Suffice it to say, by a unanimous vote of the five board members, Thulin was reassigned to a classroom teaching position. She refused the reassignment and resigned at the end of June 2009.

At that time, Kendall Lynn was the director of information and technology for the District. Advised by Hubbell that layoffs in the technology department appeared likely, Lynn consulted with Thurbon. The layoff became a reality on August 17. Lynn then made a backup copy of all e-mail records on the system, including 39,312 e-mails and over 100,000 pages. Although he realized he needed authorization before he could access and copy the e-mails, he did so anyway without authorization or approval. Thurbon filed separate wrongful termination lawsuits on behalf of both Thulin and Lynn: Thulin for whistleblower retaliation and Lynn for racial discrimination.

In May 2010 Lynn informed Thurbon that he possessed e-mails he believed were relevant to his case. Thurbon told Lynn he could send the e-mails to his office and he would review them at a later date. Lynn sent the e-mails on a thumb drive, and Thurbon's staff copied them onto the law firm's computer system. He claims he researched whether Lynn properly acquired the e-mails and determined that because Lynn was director of information and technology, he was acting within the course and scope of his employment at the time he copied the e-mails.

On June 14 Lynn informed Thurbon there were e-mails from Strohmayer showing that "'what the District did to Jody was bad.'" At his deposition on June 23, Lynn admitted that all the e-mails were District property and he was not authorized to access them.

Nevertheless, four days later Thurbon instructed Thulin to search the e-mails on his office computer to determine if they were responsive to the District's request for production of documents. He did not inform the District or its lawyers that he possessed the e-mails. Thulin identified 147 e-mails she considered responsive to the District's request and gave Thurbon three e-mails she believed were relevant to her opposition to the motion for summary judgment. The opposition was due on June 28. According to Thurbon, his associate produced the 147 e-mails without reviewing them.

Thulin's deposition began the following day, which was June 29, 2010. Deadlines were looming. The hearing on the motion was scheduled for July 12. Discovery would be cut off on July 19, with the trial scheduled for August 17. Thurbon had no ...

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