Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ochoa v. Santa Clara County Office of Education

United States District Court, N.D. California

November 20, 2017

MICAELA OCHOA, Plaintiff,
v.
SANTA CLARA COUNTY OFFICE OF EDUCATION,, Defendants.

          ORDER ON MOTIONS IN LIMINE DKT. NOS. 58, 62, 63, 64

          HOWARD R. LLOYD, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Micaela Ochoa (“Ochoa”) sues her former employer, the Santa Clara County Office of Education (“SCCOE”), and its superintendent, Jon Gundry (“Gundry”) (collectively “Defendants”), for retaliatory termination in violation of her First Amendment rights and California Labor Code Section 1102.5. This order addresses four motions in limine presented by the parties.[1]

         I. PLAINTIFF'S MOTION IN LIMINE NO. 2

         Ochoa seeks an order excluding Patty White and Richard Noack from testifying at trial. White and Noack are both attorneys who served as outside counsel to SCCOE staff on labor and employment issues. Ochoa argues that Defendants previously asserted attorney-client privilege as to communications involving the two attorneys, and that Defendants are attempting to belatedly raise an implicit advice of counsel defense. Defendants dispute the extent to which they claimed privilege as to communications with White and Noack, and argue that White and Noack will testify only to the non-privileged portions of their communications with Defendants. The Court grants Ochoa's motion in part and denies it in part.

         During discovery, Defendants repeatedly asserted attorney-client privilege as to communications involving White and Noack. Most notably, in March 2017, Defendants produced redacted e-mails between Philip Gordillo, SCCOE's human resources manager, and the two attorneys. Defendants included a privilege log with the e-mail production. After the close of fact discovery, however, Defendants proposed to call White and Noack as witnesses to testify to events leading up to Ochoa's termination, the preparation of Ochoa's termination letter, and, in the case of White only, SCCOE's response to Public Records Act requests. Defendants then produced unredacted versions of the e-mails.

         The attorney-client privilege attaches to confidential communications between an attorney and a client for the purpose of conveying or obtaining legal advice. The privilege protects “the substance of the communications . . . not the fact that there have been communications.” United States v. Kendrick, 331 F.2d 110, 113 (4th Cir. 1964). While voluntary disclosure of part of a confidential communication can waive the privilege as to the rest of that communication, Handgards, Inc. v. Johnson & Johnson, 413 F.Supp. 926, 929 (N.D. Cal. 1976), disclosing that a communication occurred and when it occurred does not constitute waiver, Western United Life Assurance Co. v. Fifth Thrid Bank, No. 02-C-7315, 2004 WL 2583916 (N.D. Ill. Nov. 12, 2004) (“Finding a partial disclosure and resultant waiver based on [an exchange revealing that a conversation occurred and a “terse” suggestion of the topic] would be tantamount to finding a waiver based on the mention and cursory description of a document in a privilege log.”).

         In Columbia Pictures Television, Inc. v. Krypton Broadcasting of Birmingham, Inc., 259 F.3d 1186 (9th Cir. 2001), the Ninth Circuit affirmed the district court's decision to preclude an advice of counsel defense where the defendant refused to answer questions regarding “relevant communications with counsel until the ‘eleventh hour[.]'” Columbia Pictures, 259 F.3d at 1196. When the defendant later attempted to argue that he had relied on the advice of his attorney, the court was within its discretion to prevent the defendant from testifying to communications he had previously claimed were privileged. Id. “The privilege which protects attorney-client communications may not be used both as a sword and a shield.” Id. (citation omitted).

         Here, to the extent that Defendants are offering the testimony of White and Noack as part of an advice of counsel defense, the Court grants Ochoa's motion. Defendants did not properly assert this defense in their answer or their motion for summary judgment. Further, Defendants asserted attorney-client privilege as to much of the substance of the communications between Gordillo and White and Noack. Attorney-client privilege may not be used as a shield during discovery, and then a sword in the run-up to trial. See Columbia Pictures, 259 F.3d at 1196.

         However, Defendants may present the non-privileged aspects of the communications between Gordillo and White and Noack (i.e., the fact that the communications occurred, when they occurred, and the subject of those communications, as described in the privilege log). Defendants produced this information to Ochoa during discovery, and the timing of these communications is probative of Defendants' assertion that Ochoa's dismissal was not the result of retaliation.

         To summarize the Court's ruling, Defendants may not offer the testimony of White and Noack as part of a belated advice of counsel defense. Further, White and Noack may not testify to the substance of their communications with Defendants (the previously-redacted portions of the March 2017 e-mail production). The two witnesses may testify only to the fact that the communications occurred, when they occurred, and the general subject matter of the communications.

         II. DEFENDANTS' MOTION IN LIMINE NO. 2

         Defendants seek to exclude evidence that Maribel Medina, SCCOE's former general counsel, accused Defendants of racial and gender discrimination in a separate lawsuit. The Court denies the motion, except as detailed below.

         Defendants ended Medina's employment around the time Ochoa was dismissed. Defendants argue that Medina's claims are irrelevant to Ochoa's lawsuit, and that her testimony would confuse the jury and/or be unduly prejudicial. Additionally, Defendants argue that Medina's claims constitute improper character evidence.

         Evidence of a wrongful act “is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” Fed.R.Evid. 404(b)(1). Evidence of a wrongful act may be admissible, however, to prove motive or intent. Fed.R.Evid. 404(b)(2). In cases involving alleged employment retaliation, courts have admitted “me too” evidence - evidence that other employees alleged that the defendant employer retaliated against them - as probative of the employer's retaliatory intent or motive. See Moniz v. City of Delano, No. 1:13-cv-00093-JLT, 2015 WL 128124 (E.D. Cal. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.