Seyfarth Shaw lawyers couldn’t have thought it a good sign when their motion to clarify — filed in defense of client Costco in an employment discrimination action — provoked a reply from Judge Marilyn Patel entitled “Order Clarifying That Which Need Not Be Clarified.”
Indeed, the San Francisco federal judge smacked down the defense’s entreaties last week in language usually reserved for petulant children.
Plaintiff lawyers, led by The Impact Fund and Lieff Cabraser Heimann & Bernstein, have alleged a glass ceiling at Costco for female employees seeking promotion. They’re seeking class status. In response, Seyfarth lawyers have produced 204 declarations from women workers saying, in general, that the retailer treats them just fine.
Multiple aspects of the declarations irked the plaintiff lawyers, who A) raised the specter that they were obtained through coercive means, and B) argued the declarants’ contention that they never witnessed or suffered discrimination was inadmissible because it is a legal conclusion by a layperson.
So on Oct. 10, Patel’s order (.pdf) told Costco to produce its declarants in court for examination. All of them.
That prompted Seyfarth lawyer David Kadue’s motion for clarification, dated Oct. 20, in which he wondered in part about the logistics of such a mass witness appearance. Attorney Kadue then became acquainted with Judge Patel’s buzzsaw.
“Apparently defendant is determined to waste the court’s time for it has now moved for clarification, questioning whether the court means what it has said,” Patel wrote. “The court does.”
She continued: “The methods for communicating with the declarants, transporting them to the hearing, and the order in which they will appear are details which the parties should agree upon or work out themselves. The court has neither the time nor the inclination to serve as a travel agent.”
The judge then expressly forbade any additional requests or submissions on the motion for class certification, which will enable the parties “to focus their efforts and the time and resources of the court” on an upcoming hearing on the issue instead of “additional motions for clarification of that which the court has made abundantly clear.”
Apparently the lawyers got the message; yesterday, Patel signed a stipulated agreement striking the language in the declarations the plaintiffs had found so irksome, while still allowing the court to hear from Costco’s parade of character witnesses.
— Dan Levine