Metropolitan News-Enterprise


Tuesday, January 16, 2007


Page 3


C.A.: Lawyer’s Lack of Recall About Confidential Data Defeats Disqualification


By TINA BAY, Staff Writer


An attorney, who said he could not remember obtaining material confidential information at his former firm, carried his burden of proving he was not exposed to such information for purposes of defeating a disqualification motion, the Fifth District Court of Appeal has ruled.

The court Friday affirmed Fresno Superior Court Judge M. Bruce Smith’s order denying an agricultural company’s motion to disqualify a lawyer who allegedly acquired information about their case while previously employed by the law firm representing them.

Attorney Shelley G. Bryant was with the Fresno-based labor and employment law firm of Jory, Peterson, Watkins, Ross & Woolman when it was retained in early 2004 to defend Ridgeback Ranch, Inc. and Randall S. Johnston in a wrongful termination suit. Bryant was a shareholder in the firm from January 1 through May 11, 2005, at which point he resigned to work for the firm of W.J. Smith & Associates, another employment law firm in Fresno.

Smith represented Pedro Garcia Ochoa and Agustin Ochoa, the two plaintiffs in the Ridgeback case.  Following Bryant’s move to the Smith firm, Jory Peterson asked the Smith firm to withdraw from representation, but Smith refused. 

Ridgeback and Johnston—joined by the two other defendants, Fordel, Inc. and Peak Harvesting, Inc.—then filed a motion to disqualify the Smith firm on the basis that Bryant had obtained confidential information about the Ridgeback case while with Jory Peterson.

Ridgeback claimed that while Bryant did no work on the Ridgeback case while at Jory Peterson, his office was adjacent to the office of a then-colleague working on the matter. A supporting declaration by the former colleague, Jason Parkin, stated that Bryant had regularly engaged in one-on-one discussions with Parkin about issues and strategies concerning the Ridgeback case. 

Parkin also claimed Bryant had routinely attended the firm’s weekly luncheon meetings, and that he “believed” Bryant was at the meetings where the Ridgeback case was discussed. 

Bryant also allegedly obtained confidential information about the matter through accessing documents on Jory Peterson’s computer system—an audit of the system revealed that Bryant had opened six files related to the case, consisting of five court submissions and one correspondence to the Department of Fair Employment and Housing about complaints plaintiffs had filed with the department.

In opposing the disqualification motion, Smith & Associates claimed that Bryant was insulated from the Ridgeback case after he joined the firm.  Moreover, Bryant submitted a declaration stating he never discussed the facts or legal issues of the Ridgeback case with anyone, and only once addressed a generic legal question Parkin asked him in connection with the matter. 

Bryant also said he did not recall any discussions about the case during any lunch meetings he attended.

In deciding the disqualification motion, the trial judge applied the modified substantial relationship test—which raises a rebuttable presumption that a firm-switching attorney possesses confidential information—on the basis  that Bryant’s association with Jory Peterson made it likely he obtained confidential information material to the Ridgeback case.

But noting the distinction between access to and acquisition of such information, the judge concluded Bryant rebutted the presumption and proved he had not previously been exposed to or imparted confidential information about the Ridgeback case.

On appeal, Fordel and Peak Harvesting argued Bryant failed to carry his burden of proof regarding his lack of exposure to the information because he merely established a lack of recollection but made no other affirmative showing.

Justice Steven M. Vartabedian, writing for the Court of Appeal, rejected their contention:

“[I]f we were to accept Fordel and Peak Harvesting’s position regarding what was required to carry the burden of proof, then Bryant could carry that burden only if he stated that (1) he recalled every matter discussed at every meeting he attended and (2) this case was not discussed when he was present.  Such a high threshold is not appropriate.”

The trial judge correctly ruled that Bryant’s burden was to prove he was not exposed to material confidential information, as opposed to proving he had no opportunity to acquire such information, Vartabedian wrote.

The justice added that the documents Bryant opened on Jory Peterson’s computer had either already been filed and served at the time he accessed them, or were properly found not to contain confidential data.

Justices Bert Levy and Gene M. Gomes concurred in the opinion.

Russell G. VanRozeboom, Fordel’s counsel on appeal, noted his client’s concern was based on the fact that Jory Peterson is a small firm.

“The frequency with which lawyers discuss cases in small offices is very high,” he told the MetNews.  “Here, you have lawyers working together in a very, very small office, and that’s what differentiates this case from some of the others where you have multinational firms involved with hundreds of lawyers maybe not working in the same office.”

On the issue of whether Bryant carried his burden, VanRozeboom said:

“The appellate court obviously disagreed and, as they say, it’s nice to be judge.”

The plaintiffs’ appellate counsel could not be reached for comment.

The case is Ochoa v. Fordel, Inc., 07 S.O.S. 213.


Copyright 2007, Metropolitan News Company