Defendant's Motion to Strike

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION PAMELA WILLIAMS CARTHENS, LEVEN WEISS, J.D., CLARENCE PRESLEY II, ELLIS JEFFERSON, DARLENE COLLINS, TRACY FITZPATRICK, and ROBERT JOHNSON, on behalf of themselves and all others similarly situated, Plaintiffs, Case No. 17-10097 vs.

FCA US LLC,

Hon. Laurie J. Michelson Oral Argument Requested

Defendant. __________________________________________________________________ AKEEL & VALENTINE, PLC Shereef H. Akeel (P54345) Hasan Kaakarli (P81099) 888 W Big Beaver Road, Suite 910 Troy, MI 48084 (248) 269-9595 shereef@akeelvalentine.com hasan@akeelvalentine.com PITT, McGEHEE, PALMER & RIVERS, PC Michael L. Pitt (P24429) Cary S. McGehee (P42318) Robert W. Palmer (P31704) Megan A. Bonanni (P52079) 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 mpitt@pittlawpc.com cmcgehee@pittlawpc.com rpalmer@pittlawpc.com mbonanni@pittlawpc.com

MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. Jerome R. Watson (P27082) M. Misbah Shahid (P73450) 150 West Jefferson, Suite 2500 Detroit, Michigan 48226 (313) 963-6420 / fax 313 496-7500 watson@millercanfield.com shahid@millercanfield.com LITTLER MENDELSON, P.C. Daniel E. Turner (Ga. Bar No. 719330) Jacqueline Phipps Polito (NY Bar No. 2582690) Tasha K. Inegbenebor (Ga. Bar. No. 382905) 3344 Peachtree Road N.E., Suite 1500 Atlanta, GA 30326 (404) 233-0330 dturner@littler.com jpolito@littler.com tinegbenebor@littler.com Attorneys for Defendant

Attorneys for Plaintiffs

DEFENDANT’S MOTION TO STRIKE REFERENCES IN THIRD AMENDED COMPLAINT PURPORTEDLY BASED ON FACTS UNLAWFULLY OBTAINED BY PLAINTIFFS

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Defendant, FCA US LLC (“Defendant” or “FCA US”), through its attorneys, Littler Mendelson P.C. and Miller, Canfield, Paddock and Stone, P.L.C., hereby moves this Court, pursuant to Federal Rule of Civil Procedure 12(f) and this Court’s inherent powers, to: (1) strike all references in the Third Amended Complaint (“TAC”) (Dkt. 48) purportedly based on FCA US’s documents, data and/or property stolen by former plaintiff Marlin Williams (including but not limited to paragraphs 40, 41, 62, 67, 68, 69, 70, 71, 72, 86, 88, 93, 94, 100, 105, 106, 107, 109, 117, 123, 124, 127, 129, 135, 140, 141, 147, 149, and 155 of the TAC); (2) strike all stolen documents, data and/or property Plaintiffs filed under seal (Dkts. 9, 10, 10A, and 11); (3) preclude Plaintiffs and Plaintiffs’ counsel from relying on FCA US’s documents, data and/or property surreptitiously obtained outside the discovery process; (4) require Plaintiffs and their attorneys to provide an accounting of, and return to FCA US, all FCA US documents, data and/or property stolen by any current or former Plaintiff in this matter; and (5) require Plaintiffs and their attorneys to provide a detailed accounting of each and every person or entity that they shared any FCA US documents, data and/or property stolen by any current or former Plaintiffs in this matter with, including counsel and any experts, consultants, etc. In support of this Motion, FCA US states: 1.

On January 11, 2017, Marlin Williams (“M. Williams”), a former

FCA US employee, filed her Complaint. (Dkt. 1). On January 31, 2017, Plaintiffs

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filed a First Amended Complaint (Dkt. 3) adding new Plaintiffs Pamela Williams Carthens, Jerome Thompson, Brenda DeForrest, Leven Weiss, Michael Brown, Cora Williams, and Anthony Hill, and on March 16, 2017, Plaintiffs filed a Second Amended Complaint. (Dkt. 8).

2.

On April 20, 2017, following notice from Defendant to Plaintiffs’

counsel that M. Williams stole confidential documents and data from FCA US and a request that such documents, data and/or property immediately be accounted for and returned, Plaintiffs filed under seal some of the documents M. Williams stole, which she allegedly provided to Plaintiffs and/or their attorneys to support the allegations in the instant lawsuit. (Dkt. 10).

3.

On May 15, 2017, FCA US filed a Motion to Compel Arbitration;

Motion to Dismiss; and/or Motion to Strike Class Allegations in the Second Amended Complaint. (Dkt. 19).

4.

On May 24, 2018, the Court entered an Opinion and Order Granting

in Part and Denying in Part Defendant’s Motion to Compel Arbitration and Denying Defendant’s Motion to Dismiss and/or Motion to Strike Class Allegations in the Second Amended Complaint. (Dkt. 37). Except for Plaintiffs Leven Weiss and Pamela Williams Carthens, the Court’s Opinion and Order compelled Plaintiffs M. Williams, Brown, DeForrest, Hill, C. Williams, and Thompson to individual arbitrations and dismissed their claims. The Court also allowed the

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remaining Plaintiffs the opportunity to “submit one final amended complaint” to remedy their “pleading deficiencies.” Id. 5.

On June 7, 2018, Plaintiffs filed a Motion for Reconsideration

regarding the Court’s Opinion and Order. (Dkt. 39). On November 8, 2018, following a hearing, the Court denied Plaintiffs’ Motion for Reconsideration.

(Dkt. 45).

6.

On December 20, 2018, Plaintiffs Carthens and Weiss and new

Plaintiffs Clarence Presley II, Ellis Jefferson, Darlene Collins, Tracy Fitzpatrick and Robert Johnson filed their TAC. (Dkt. 48). In light of the Court’s November 8, 2018 Opinion and Order, M. Williams is not a plaintiff in the TAC. (Dkt. 45).

7.

Nevertheless, Plaintiffs’ TAC, like the prior complaints, relies on

characterizations of information M. Williams stole from FCA US and improperly provided to their attorneys and possibly to the other Plaintiffs.

M. Williams

retained these documents—including privileged materials—in violation of a confidentiality agreement that prohibits her from possessing or using confidential information or disclosing it to others.

8.

Plaintiffs’ counsel in the instant action also represent the Plaintiffs in

Cerjanec et al. v. FCA US LLC, Case No. 17-10619. As a result, when drafting the complaints in that action, they had access to – and utilized – information M. Williams stole.

Indeed, at oral argument on FCA US’s Motion to Dismiss

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Plaintiffs’ Second Amended Class/Collective Action Complaint and/or Motion to Strike Class and Collective Action Allegations in the Second Amended Complaint in Cerjanec, et al. v. FCA US LLC, Plaintiffs’ counsel specifically admitted that the allegations in the Cerjanec litigation are based upon their characterizations of the documents and data M. Williams stole from FCA US. See Cerjanec, Dkt. 62, PgID 2183 (Plaintiffs’ counsel Mr. Akeel stated: “What is supporting our disparate impact claim, part of it are the statistics that have been filed under seal [in the Williams (now Carthens matter)]. It’s not like we’re coming out of thin air and we don’t have the statistics. They are there.”). Plaintiffs’ counsel Mr. Akeel made this admission months after knowing that the documents were stolen.1 9.

As a result, not only are Plaintiffs in this matter seeking to profit from

M. Williams’ stealing of confidential FCA US documents, data, and/or property, their attorneys are also creating other litigation based upon their review of the same stolen records despite having been told M. Williams had stolen confidential documents before filing them under seal.

10.

Here, Plaintiffs’ TAC refers to the stolen information in paragraphs

71, 105 and 140. In addition, Plaintiffs’ class definition and other information in the TAC is undeniably based upon their characterization of the contents of the 1

Plaintiffs’ counsel is also the counsel of record in two other matters that have been filed against FCA US LLC where the stolen data has been referenced in public filings: Allen et al v. FCA US LLC, Case No: 17-11011 (Dismissed on December 11, 2018); and Thibodeau et al v. FCA US LLC, Case No: 18-13654.

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stolen documents including, but not limited to, the following paragraphs: 40, 41, 62, 67-70, 72, 86, 88, 93, 94, 100, 106, 107, 109, 117, 123, 124, 127, 129, 135, 141, 147, 149, and 155. Similarly, the class and collective action definitions in Cerjanec et al. v. FCA US LLC, Case No. 17-10619 are also undeniably based upon their characterization of the stolen documents.

11.

Plaintiffs should not be permitted to rely upon, benefit from, or

support their claims with their characterizations of documents, data, and/or property purloined from FCA US by a former FCA US employee and former plaintiff. Accordingly, the Court should: • strike all references in the TAC to information purportedly obtained from the stolen documents, data and/or property; • strike all of the stolen documents, data and/or property Plaintiffs filed under seal (Dks. 9, 10, 10A, and 11); • preclude Plaintiffs and Plaintiffs’ counsel from relying on FCA US’s documents, data and/or property obtained outside the discovery process; • require Plaintiffs and their attorneys to provide an accounting of, and return to FCA US, all stolen documents, data and/or property; and • require Plaintiffs and their attorneys to provide an accounting of each and every person or entity that they shared any of FCA US’s

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documents, data and/or property stolen by any current or former Plaintiffs in this matter with, including counsel and any experts, consultants, etc.

12.

Pursuant to Local Rule 7.1, on February 4, 2019, defense counsel

Jerome Watson sought concurrence in the relief sought from Plaintiffs’ attorney, Shereef Akeel. Plaintiffs’ counsel did not respond to the message, necessitating the filing of this Motion.

WHEREFORE, FCA US respectfully requests that this Honorable Court grant this Motion and strike all references in the TAC to information purportedly based on FCA US’s documents, data and/or property former plaintiff M. Williams stole (including but not limited to paragraphs 40, 41, 62, 67, 68, 69, 70, 71, 72, 86, 88, 93, 94, 100, 105, 106, 107, 109, 117, 123, 124, 127, 129, 135, 140, 141, 147, 149, and 155 of the TAC); strike all stolen documents, data and/or property Plaintiffs filed under seal (Dkts. 9, 10, 10A, and 11); preclude Plaintiffs and Plaintiffs’ counsel from relying on FCA US’s documents, data and/or property obtained outside the discovery process; require Plaintiffs and their attorneys to provide an accounting of, and return to Defendant, all FCA US documents, data and/or property stolen by any former or current Plaintiff in this matter; require Plaintiffs and their attorneys to provide an accounting of each and every person or entity that they shared any of FCA US’s documents, data and/or property stolen by

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any former or current Plaintiffs in this matter with, including counsel and any experts, consultants, etc.; and award FCA US all other relief necessary to fully resolve issues relating to the documents, data, and/or property stolen by M. Williams and/or any other current or former Plaintiff.

Respectfully submitted, /s/Jerome R Watson (P27082) Miller, Canfield, Paddock and Stone, P.L.C. Attorney for Defendant 150 West Jefferson, Suite 2500 Detroit, Michigan 48226 (313) 963-6420 watson@millercanfield.com

/s/Daniel E. Turner (Ga. Bar No. 719330) Littler Mendelson, P.C. Attorney for Defendant 3344 Peachtree Road N.E., Suite 1500 Atlanta, GA 30326 (404) 233-0330 dturner@littler.com

February 4, 2019

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION PAMELA WILLIAMS CARTHENS, LEVEN WEISS, J.D., CLARENCE PRESLEY II, ELLIS JEFFERSON, DARLENE COLLINS, TRACY FITZPATRICK, and ROBERT JOHNSON, on behalf of themselves and all others similarly situated, Plaintiffs, Case No. 17-10619 vs.

FCA US LLC,

Hon. Laurie J. Michelson Oral Argument Requested

Defendant. __________________________________________________________________ AKEEL & VALENTINE, PLC Shereef H. Akeel (P54345) Hasan Kaakarli (P81099) 888 W Big Beaver Road, Suite 910 Troy, MI 48084 (248) 269-9595 shereef@akeelvalentine.com hasan@akeelvalentine.com PITT, McGEHEE, PALMER & RIVERS, PC Michael L. Pitt (P24429) Cary S. McGehee (P42318) Robert W. Palmer (P31704) Megan A. Bonanni (P52079) 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 mpitt@pittlawpc.com Attorneys for Plaintiffs

MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. Jerome R. Watson (P27082) M. Misbah Shahid (P73450) 150 West Jefferson, Suite 2500 Detroit, Michigan 48226 (313) 963-6420 / fax 313 496-7500 watson@millercanfield.com shahid@millercanfield.com LITTLER MENDELSON, P.C. Daniel E. Turner (Ga. Bar No. 719330) Jacqueline Phipps Polito (NY Bar No. 2582690) Tasha K. Inegbenebor (Ga. Bar. No. 382905) 3344 Peachtree Road N.E., Suite 1500 Atlanta, GA 30326 (404) 233-0330 dturner@littler.com jpolito@littler.com tinegbenebor@littler.com Attorneys for Defendant

__________________________________________________________________ BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE REFERENCES IN THE THIRD AMENDED COMPLAINT PURPORTEDLY BASED ON FACTS UNLAWFULLY OBTAINED BY PLAINTIFFS

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... ii CONTROLLING OR MOST APPROPRIATE AUTHORITY ..............................iv STATEMENT OF ISSUES PRESENTED............................................................... v I.

INTRODUCTION .......................................................................................... 1

II.

STATEMENT OF RELEVANT FACTS ....................................................... 3

III.

IV.

A.

Marlin Williams Signs Agreements Prohibiting Her From Taking or Sharing FCA US’s Documents, Data, and/or Property ....... 3

B.

FCA US Learns Of M. Williams’ Theft............................................... 6

C.

Characterizations of Information Contained In Stolen Documents Surface In Litigation .......................................................10

ARGUMENT ................................................................................................12 A.

The Court Should Strike References In The TAC To Information Purportedly Obtained From Stolen Documents .............12

B.

The Defend Trade Secrets Act is Inapplicable to M. Williams’ Misconduct .........................................................................................17

CONCLUSION.............................................................................................19

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TABLE OF AUTHORITIES Page(s) Cases Allen et al v. FCA US LLC, Case No: 17-11011 (Dismissed on December 11, 2018) .............................................................................................. 1 Am. Civil Liberties Union of Kentucky v. McCreary Cnty., Ky., 607 F.3d 439 (6th Cir. 2010) ..................................................................................... 13 Bowles v. City of Cleveland, 129 F. App’x 239 (6th Cir. 2005).............................. 13 Bradley J. Delp Revocable Tr. v. MSJMR 2008 Irrevocable Tr., 665 F. App’x 514 (6th Cir. 2016) .................................................................................. 14 Cerjanec et al. v. FCA US LLC, Case No. 17-10619 .......................................passim City of Pontiac Gen. Emps’ Ret. Sys. v. Wal-Mart Stores, Inc., 2014 WL 11515512 (W.D. Ark. Mar. 10, 2014) ...................................................13, 14 City of Pontiac Gen. Emps’ Ret. Sys. v. Wal-Mart Stores, Inc., Dkt. 161, January 30, 2015 Order (attached as part of Exhibit 14) ............................ 14 Fayemi v. Hambrecht & Quist, 174 F.R.D. 319 (S.D.N.Y. 1997) ....................15, 16 Hixon v. Donahoe, 2015 WL 2405973 (E.D. Mich. May 19, 2015) ......................... 4 James v. Metro. Gov’t of Nashville, 243 F. App’x 74 (6th Cir. 2007) ...................... 4 Jones v. Metro. Life Ins. Co., 2010 WL 4055928 (N.D. Cal. Oct. 15, 2010) ................................................................................................................... 12 Kriss v. Bayrock Grp., 2015 WL 1305772 (S.D.N.Y. Mar. 23, 2015) .................... 14 Shields v. Gen. Mills Inc., 2017 WL 6520685 (D. Minn. Dec. 1, 2017) ................. 12 Spencer v. Pottsdown Sch. Dist., 292 F. Supp. 3d 635, 644-55 (E.D. Pa. 2018) ............................................................................................................. 14 Thibodeau et al v. FCA US LLC, Case No: 18-13654 ............................................... 1

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Zep Inc. v. Midwest Motor Supply Co., 726 F. Supp. 2d 818 (S.D. Ohio 2010) .......................................................................................................... 13 Statutes Defend Trade Secrets Act, 18 U.S.C 1833 et. seq. ............................8, 11, 17, 18, 19 Rules Federal Rule of Civil Procedure 12(f) ..................................................................... 12

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CONTROLLING OR MOST APPROPRIATE AUTHORITY

Federal Rule of Civil Procedure 12(f)

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STATEMENT OF ISSUES PRESENTED I.

Should the Court enter an order striking all references in the TAC that contain information purportedly obtained from FCA US’s documents, data and/or property stolen by any current or former Plaintiff, including Marlin Williams?

Defendant answers “Yes.”

II.

Should the Court enter an order striking all stolen documents, data and/or property Plaintiffs filed under seal (Dkts. 9, 10, 10A, and 11)?

Defendant answers “Yes.”

III.

Should the Court enter an order precluding Plaintiffs and Plaintiffs’ counsel from relying on FCA US’s documents, data and/or property improperly obtained outside the discovery process?

Defendant answers “Yes.”

IV.

Should the Court enter an order requiring Plaintiffs and their attorneys to provide an accounting of, and return to Defendant, all FCA US documents, data, and/or property stolen by any current or former Plaintiff, including Marlin Williams?

Defendant answers “Yes.”

V.

Should the Court enter an order requiring Plaintiffs and their attorneys to provide an accounting of each and every person or entity that they shared any of FCA US’s documents, data, and/or property stolen by any current or former Plaintiffs in this matter with, including counsel and any experts, consultants, etc.?

Defendant answers “Yes.”

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I.

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INTRODUCTION

In this putative class action, Plaintiffs allege they were discriminated against based on their race in violation of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), the Michigan Elliott-Larsen Civil Rights Act (“ELCRA”), and 42 U.S.C. § 1981. The allegations in the TAC do not derive from their independent

knowledge.

Instead,

Plaintiffs

attempt

to

rely

on

their

characterizations of information their counsel obtained from documents, data and/or property stolen from FCA US by M. Williams, FCA US’s former Diversity Manager and the former lead (but now dismissed) Plaintiff in this case. Plaintiffs’ counsel also represent other current or former FCA US employees in a separate putative collective/class action, Cerjanec et al. v. FCA US LLC, Case No. 1710619 (“Cerjanec”), wherein they rely on their characterizations of the same stolen documents, data and/or property. Prior to her resignation, M. Williams wrongfully took for her personal use documents, data and/or property (access to some of which was available to her as an employee) in violation of a confidentiality agreement and provided them to her attorneys, who in turn used them to create this litigation as well as the Cerjanec litigation.2

2

Plaintiffs’ counsel is also the counsel of record in two other matters that have been filed against FCA US LLC where the stolen data has been referenced in public filings: Allen et al v. FCA US LLC, Case No: 17-11011 (Dismissed on December 11, 2018); and Thibodeau et al v. FCA US LLC, Case No: 18-13654.

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In fact, at oral argument on FCA US’s Motion to Dismiss in the Cerjanec litigation, Plaintiffs’ counsel Shereef Akeel openly admitted that they were using their characterization of the documents M. Williams stole as the basis for that action, stating: What is supporting our disparate impact claim, part of it are the statistics that have been filed under seal [in the Williams matter (now the Carthens matter)]. It’s not like we’re coming out of thin air and we don’t have the statistics. They are there.

Cerjanec, Dkt. 62, PgID 2183, see also Cerjanec Dkt. 53 at 10 (stating in response brief to FCA US’s Motion to Dismiss that “Plaintiffs filed supporting evidentiary data under seal in the concurrent class action case against Defendant.”). Plaintiffs’ counsel made this statement and also filed the documents on the record under seal after knowing they were stolen.

It is undoubtedly improper to use characterizations of stolen documents and data in support of a class action, especially when M. Williams is no longer a plaintiff, and even more egregious for Plaintiffs’ counsel to use his characterization of such documents as the foundation for claims in the Cerjanec litigation. Despite FCA US’s numerous attempts to have M. Williams return all of the stolen documents, M. Williams has repeatedly failed to do so. Theft and retention of confidential corporate documents should not be condoned.

In order to preserve the integrity of these judicial proceedings, FCA US requests that the Court enter an order: (1) striking all references in the TAC 2

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purportedly based on FCA US’s documents, data, and/or property stolen by former plaintiff M. Williams; (2) striking all stolen documents, data and/or property Plaintiffs filed under seal (Dkts. 9, 10, 10A, and 11); (3) precluding Plaintiffs and Plaintiffs’ counsel from relying on FCA US’s documents, data, and/or property improperly obtained outside the discovery process; (4) requiring Plaintiffs and their attorneys to provide an accounting of, and return to Defendant, all of FCA US’s documents, data, and/or property stolen by any current or former Plaintiff in this matter; and (5) requiring Plaintiffs and their attorneys to provide an accounting of each and every person or entity that they shared any FCA US documents, data, and/or property stolen by any current or former Plaintiffs in this matter with, including counsel and any experts, consultants, etc.3 II. A.

STATEMENT OF RELEVANT FACTS

Marlin Williams Signs Agreements Prohibiting Her From Taking or Sharing FCA US’s Documents, Data, and/or Property M. Williams began her employment with FCA US in January 2015. (Dkt. 8

¶ 29). In September 2015, M. Williams was promoted to Diversity Manager. (Id. ¶ 32; TAC ¶ 35).

In this role, M. Williams had access to confidential and

proprietary FCA US information and documents, including information related to internal analysis of the employee evaluation process known as the Performance 3

Defendant reserves the right to seek any and all other relief relating to documents, data, and/or property stolen from FCA US, including, but not limited to sanctions against Plaintiffs and/or their counsel.

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and Leadership Management system (“PLM”) and personal information about FCA US employees. (Dkt. 8 ¶¶ 32, 44, 45; TAC ¶ 40). Given her position at FCA US, some of the information that M. Williams had access to was clearly labeled “attorney-client privilege” or “attorney work product.” Additionally, the documents M. Williams had access to included alleged statistical reports generated at the direction of M. Williams and completed by other employees from FCA US’s Human Resources department. (Dkt. 8 ¶ 54).4 Neither Plaintiffs nor M. Williams can show that M. Williams had permission to take FCA US’s documents and property containing such alleged data when her employment with FCA US ended.

To ensure the confidentiality of this type of information, M. Williams signed, at the start of her employment, an Acknowledgement and Agreement, Salaried Non-Represented New Hire (the “Acknowledgment”) (Ex 1, Decl. of Walter Bartels, ¶¶5-7, Ex 1A, Acknowledgment). The Acknowledgement states that M. Williams agrees to follow FCA US’s Standards of Conduct, Integrity Code, 4

It bears noting that there is no indication that the alleged “data” is (a) reliable; (b) was prepared by someone with the requisite knowledge, education and training, as these employees were wholly unqualified to conduct such a statistical analysis; or (c) supports or is even arguably related to their calibration process/forced ranking theory. Further, the “data” does not support Plaintiffs’ claims of disparate treatment or disparate impact discrimination because a performance evaluation, such as a PLM rating, is not an adverse action. James v. Metro. Gov’t of Nashville, 243 F. App’x 74, 79 (6th Cir. 2007); Hixon v. Donahoe, 2015 WL 2405973, at *6 (E.D. Mich. May 19, 2015) (holding that performance rating did not constitute an adverse employment action); see also Defendant’s Motion To Dismiss Plaintiffs’ Third Amended Complaint And/Or To Strike Class Allegations In The Third Amended Complaint (which will be filed as Dkt. 50).

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and all FCA US Policies and Guidelines. M. Williams also signed an Employee Assignment and Confidential Information Agreement (the “Agreement”). (Ex 1, Decl. of Bartels ¶¶8-9), Ex 1B, Decl. of Walter Bartels, Agreement).5 Per the Agreement, M. Williams expressly acknowledged and agreed that she “may neither disclose, nor use or retain for personal benefit or the benefit of anyone other than [FCA US], at any time either during or after employment, any secret, proprietary, or confidential information . . .” (Ex 1B, ¶ 5). The Agreement was not limited to “trade secret” information as that term is defined under federal or state law. Instead, the Agreement applied to information deemed “proprietary” and “confidential” to FCA US. On January 2, 2017, M. Williams provided notice that she was resigning and on January 3, 2017, her employment with FCA US ended. (Dkt. 8 ¶¶ 67, 68).

Upon her separation, Williams was provided with a memorandum reminding her of her confidentiality obligations upon separation. (Ex 1, Decl. of Walter Bartels ¶¶10-13, Ex 1C, Exit Memo, Ex 1D Confidentiality Memorandum).

That

Confidentiality Memorandum explained (in bolded letters) that “[c]onfidential information includes any information that is not generally available to the public.” (Id.) It further described M. Williams’ confidentiality obligations: Your confidentiality obligations are as follows:

5

The agreement by Williams was signed using her maiden name, Page.

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Do not retain any physical documents or materials, other than purely personal materials, obtained from FCA US LLC or from others related to your work at FCA US LLC. If you have such documents or materials at home or elsewhere, return them to FCA US LLC rather than simply destroying them.

Do not use or disclose, in new employment or elsewhere, any confidential information, inventions or trade secrets that were created by you or disclosed to you in the course of your employment with FCA US LLC. You should not discuss such subjects, even casually in social conversation.

(Ex 1D). Finally, the memorandum reminded M. Williams of her obligations under the Employee Assignment and Confidential Information Agreement: All of your obligations under the Employee Assignment and Confidential Information Agreement, including those pertaining to confidentiality and non-disclosure, continue after your separation.

FCA US LLC reserves the right to take appropriate legal means to enforce its rights under the Employee Assignment and Confidential Information Agreement.

(Id.). Despite being put on notice with such explicit language of her contractual and legal obligations, M. Williams proceeded to breach them and engage in theft.

B.

FCA US Learns Of M. Williams’ Theft In early 2017, FCA US became aware that M. Williams took FCA US’s

property without authorization prior to her resignation when in the course of a review of her email activity it discovered that she forwarded to her private nonFCA US email accounts hundreds of FCA US emails and documents, many of which were clearly marked as confidential, including privileged information that M. Williams was privy to solely because of her role as a Diversity Manager. (Ex 6

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6, 8/15/17 Letter). Indeed, an analysis found that there were several hundred electronic records, including “family documents,” (e.g. attachments, embedded images, and duplicates) that were either sent from M. Williams’ FCA US email account to her personal email accounts prior to her resignation.

During this time, M. Williams also forwarded to her personal email account confidential FCA US diversity and inclusion presentations and policies, some of which were explicitly marked as confidential and privileged.

M. Williams

attempted to obscure her misconduct by deleting many of the emails she sent herself both from her “sent” email folder and her “deleted items” shortly before she resigned. It is evident that M. Williams improperly removed the material for the purpose of pursuing claims against FCA US in the instant lawsuit, as well as to support the claims in the Cerjanec litigation.

On April 14, 2017, FCA US’s counsel wrote to M. Williams’ attorney and demanded the immediate return of the documents, data and property M. Williams stole. (Ex 2, 4/14/17 Letter). FCA US also demanded that M. Williams and her attorney identify all stolen FCA US documents, data and/or property and cease and desist from using the stolen property in any manner, including sharing the information with others.

(Id.).

On April 17, 2017, M. Williams’ attorney

responded, admitting that M. Williams possessed FCA US’s documents, including some marked attorney-client privileged. (Ex 3, 4/17/17 Letter). On April 18,

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2017, FCA US responded, stating that M. Williams failed to provide a full accounting of all stolen FCA US property. (Ex 4, 4/18/17 Letter at p. 2-3).

Despite FCA US’s communications that the documents in M. Williams’ possession were stolen, Plaintiffs’ counsel filed, two days later, five stolen documents under seal. (See Dkt. 9, 10, 10A, and 11). On April 21, 2017, M. Williams’ counsel Shereef Akeel assured defense counsel that all documents in his possession had now been returned (Ex 6, 8/15/17 Letter).

However, it became disturbingly clear over time that M. Williams possessed others. Over the next several months, FCA US tried unsuccessfully to recover the remaining documents, data, and/or property and receive an accounting of all stolen documents, data, and/or property. Plaintiffs’ counsel refused, taking the meritless position that the federal Defend Trade Secrets Act (“DTSA”), 18 U.S.C 1833 et. seq., somehow permitted M. Williams to steal FCA US’s documents, data, and/or property, use it for her own purposes and share it with her attorneys, who could then share it with other current or former employees (such as the current Plaintiffs in the instant case as well as the Cerjanec litigation) at their own discretion. (See, e.g., Ex 5, 4/19/17 Letter). Finally, Plaintiffs’ counsel identified at least some additional documents6 after FCA US’s numerous requests and demands, including

6

Because Plaintiffs’ counsel has not provided a full accounting, it remains unclear how many additional FCA US confidential and proprietary documents, data, and/or property remain in the possession of M. Williams in hard copy or electronic form.

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some (but not all) of the documents that M. Williams surreptitiously forwarded to her personal email accounts shortly before resigning.7 Ultimately, M. Williams returned only a limited number of documents through her counsel. M. Williams’ counsel returned two documents to FCA US on April 18, 2017, which are hard copy documents clearly labeled “attorney-client privilege.”

M. Williams’ counsel also returned thirty individual hard copy

documents and a single excel sheet on a flash drive on October 17, 2017. On October 27, 2017, counsel for FCA US met with Plaintiffs’ counsel to provide further details regarding FCA US’s analysis of M. Williams’ theft. At that time, M. Williams’ counsel provided hard copy documents bates numbered “Williams 0001-0468,” (comprising eighty-six separate stolen documents) and on November 20, 2017 provided documents bates numbered “Williams 0469-0470” (comprising one stolen document).

To date, M. Williams’ counsel has returned 125 stolen documents. Each time M. Williams’ counsel provided documents, they claimed that these were “all” of the documents, data, and/or property of FCA US in M. Williams’ possession.

However, each new disclosure has revealed that M. Williams still had more stolen documents.

7

Ex 6, 8/15/17 Letter; Ex 7, 8/25/2017 Letter; Ex 8; 8/28/2017 Letter; Ex 9, 9/20/2017 Letter; Ex 10, 9/28/2017 Letter; Ex 11, 10/13/2017 Letter; Ex 12, 10/26/2017 Letter.

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As noted above, some of the documents, data, and/or property stolen by Williams and returned by her counsel are clearly labeled attorney-client privilege or confidential. Additionally, with respect to many of the hard copy documents that were returned to FCA US, in several instances, there is no forensic evidence that M. Williams ever electronically received the documents, data, and/or property in the normal course of her employment nor is there evidence that she sent them to herself electronically, evidencing that she accessed documents, data, and/or property she was never provided and took hard copies off site in violation of FCA US’s internal document and data controls.

C.

Characterizations of Information Contained In Stolen Documents Surface In Litigation Plaintiffs’ operative Complaint, the TAC, is replete with references – often

misleading or erroneous – to confidential information that Plaintiffs in this action did not have access to or knowledge of. (See, e.g., TAC ¶¶ 40, 41, 62, 67, 68, 69, 70, 71, 72, 86, 88, 93, 94, 100, 105, 106, 107, 109, 117, 123, 124, 127, 129, 135, 140, 141, 147, 149, and 155). Because M. Williams is no longer a party, Plaintiffs in the TAC must have received the information either from M. Williams or their shared counsel.8

8

M. Williams’ and Plaintiffs’ counsel Shereef Akeel’s actions impermissibly intruded on FCA US’s legally privileged matters, and the significant risk of disclosure of privileged information they have become privy to creates risks to FCA US that cannot be resolved or undone. Because Plaintiffs’ counsel has failed 10

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Additionally, during the course of communications between FCA US’s counsel and Plaintiffs’ counsel, it became abundantly clear that M. Williams not only took documents, data, and/or property from FCA US, but improperly disseminated them by either (a) sharing them with current and former employees pursuing the instant matter as well as the Cerjanec lawsuit or (b) providing them to her attorneys who then shared them with current or former Plaintiffs as well as the Cerjanec plaintiffs and/or relied on such documents to pursue the instant or Cerjanec lawsuit. (See Ex 6, 8/15/17 Letter from Watson). For example, in Cerjanec, the plaintiffs argue that the lawsuit “stem[s] from the findings of a former Human Resources Manager regarding the disparate impact in performance rating scores of two groups, 1) employees 55 and older, and 2) African American employees.” (Cerjanec, Dkt. 22 at 1). Selection of this sub-class was not a random event – Plaintiffs’ counsel admits they utilized their characterization of records stolen by M. Williams to help them come up with a class definition.

Despite admitting that Plaintiffs are in possession of stolen confidential documents, data, and/or property, Plaintiffs’ counsel continues to incorrectly seek refuge under the DTSA, claiming that it insulates and permits the use of their to provide a full accounting of all documents M. Williams stole from FCA US, including to whom the stolen documents have been disclosed and for what purpose, FCA US reserves the right to seek sanctions as to Plaintiffs’ counsel, including potential disqualification. See Shields v. Gen. Mills Inc., 2017 WL 6520685 (D. Minn. Dec. 1, 2017), report and recommendation adopted, 2017 WL 6542035 (D. Minn. Dec. 20, 2017).

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characterizations of stolen information.

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(Ex 7, 8/25/17 Letter; Ex 8, 8/28/17

Letter). Plaintiffs’ counsel has actually confirmed their misuse of the information, stating that their characterization of the stolen documents, data, and/or property filed under seal in the instant case form the basis of the lawsuit. (Ex 10, 9/28/17 Letter at 2 (stating that “all [pending cases] stem from the same facts, reports, and evidence that my client obtained and reported” and that “the statistical data that has been filed with the Court fully supports the three pending [Williams, Cerjanec, and Allen] matters”)).

III. A.

ARGUMENT

The Court Should Strike References In The TAC To Information Purportedly Obtained From Stolen Documents Federal Rule of Civil Procedure 12(f) states that “[t]he court may strike from

a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).9 In addition to Rule 12(f), courts have inherent power to strike confidential material that is improperly part of the record.

Jones v. Metro. Life Ins. Co., 2010 WL 4055928, at *6 (N.D. Cal. Oct. 15, 2010)10 (“courts have inherent power to strike inappropriate materials such as confidential mediation and settlement information that are improperly part of the public 9

Although Rule 12(f) provides that motions to strike should be filed before a party responds to a pleading, the court may also strike materials “on its own.” Fed. R. Civ. P. 12(f)(1), (2).

10

Cited unpublished cases are attached in alphabetical order as Exhibit 14.

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record”). Thus, “trial courts make use of their inherent power to control their dockets, when determining whether to strike documents or portions of documents.”

Zep Inc. v. Midwest Motor Supply Co., 726 F. Supp. 2d 818, 822 (S.D. Ohio 2010) (citing Anthony v. BTR Auto. Sealing Sys., 339 F.3d 506, 516 (6th Cir. 2003)).

Additionally, a district court has inherent power to “‘protect[ ] the due and orderly administration of justice and ... maintain [ ] the authority and dignity of the court . . . .’” Bowles v. City of Cleveland, 129 F. App’x 239, 241 (6th Cir. 2005) (quoting Cooke v. United States, 267 U.S. 517, 539 (1925)); see also Am. Civil Liberties Union of Kentucky v. McCreary Cnty., Ky., 607 F.3d 439, 451 (6th Cir. 2010) (“based on the district court’s power to manage its own docket, the court had ample discretion to strike Defendants’ late renewed motion for summary judgment”).

In analogous circumstances, courts have relied on their inherent power to strike stolen documents. City of Pontiac Gen. Emps’ Ret. Sys. v. Wal-Mart Stores, Inc., 2014 WL 11515512 (W.D. Ark. Mar. 10, 2014). In Wal-Mart Stores, the plaintiff filed a declaration attaching Wal-Mart documents and emails pertaining to an internal investigation. The plaintiff obtained the documents from a former WalMart security department employee who “had allegedly stolen these documents from Wal-Mart and sent them to various attorneys involved in Wal-Mart litigation.” Id. at *1. Wal-Mart moved to strike any stolen documents, including

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all references to them, from the record. The Court entered an order striking the emails at issue from the record. Id. In a subsequent Order, the Court required the plaintiff to return any stolen documents and prohibited the plaintiff and its counsel “from any further use or reference to these documents unless Plaintiff acquires these documents during the course of discovery.” City of Pontiac Gen. Emps’ Ret. Sys. v. Wal-Mart Stores, Inc., Dkt. 161, January 30, 2015 Order (attached as part of Exhibit 14).

In another case, Kriss v. Bayrock Grp., 2015 WL 1305772 (S.D.N.Y. Mar. 23, 2015), the court struck each paragraph, footnote, and exhibit in the plaintiffs’ first amended complaint which the defendant identified as privileged, work product, or confidential.

The defendant had alleged that plaintiffs’ counsel

improperly obtained the information from a former employee of the defendant.

Because the plaintiffs were unable to identify independent sources for the disputed information, the court relied on its inherent power to sanction plaintiffs. Id. at *1216. Other courts have reached similar results. See, e.g., Bradley J. Delp Revocable Tr. v. MSJMR 2008 Irrevocable Tr., 665 F. App’x 514 (6th Cir. 2016) (affirming dismissal of complaint as sanction after plaintiff stole documents from a business); Spencer v. Pottsdown Sch. Dist., 292 F. Supp. 3d 635, 644-55 (E.D. Pa. 2018) (relying on the court’s inherent equitable powers to preclude plaintiff from using documents he stole from his employer and directing the return of those documents

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to the employer); Fayemi v. Hambrecht & Quist, 174 F.R.D. 319, 325-27 (S.D.N.Y. 1997) (stating, “[a] court may, however, exercise its inherent equitable powers to sanction a party that seeks to use in litigation evidence that was wrongfully obtained” and deciding that a remedy precluding the plaintiff from using information stolen from his employer was appropriate).

Here, Plaintiffs are relying on their erroneous characterizations of documents, data, and/or property stolen by M. Williams, a former FCA US employee and former named plaintiff, to support their claims.

Those

characterizations of documents, data, and/or property are the source of numerous allegations in Plaintiffs’ TAC.

Because Plaintiffs admit they are using their

characterization of stolen documents, data, and/or property and cannot point to any legitimate sources of the documents, data, and/or property, the Court should exercise its discretion and strike all references in the TAC purportedly based on the stolen FCA US documents, data, and/or property (e.g., TAC ¶¶ 40, 41, 62, 67, 68, 69, 70, 71, 72, 86, 88, 93, 94, 100, 105, 106, 107, 109, 117, 123, 124, 127, 129, 135, 140, 141, 147, 149, and 155); strike all stolen documents, data, and/or property Plaintiffs filed under seal (Dkts. 9, 10, 10A, and 11); preclude Plaintiffs and Plaintiffs’ counsel from relying on FCA US documents, data, and/or property obtained outside the discovery process; require Plaintiffs and their attorneys to provide an accounting of, and return to Defendant, all FCA US documents, data

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and/or property stolen by any former or current Plaintiff in this matter; and require Plaintiffs and their attorneys to provide an accounting of each and every person or entity that they shared any of FCA US’s documents, data and/or property stolen by any former or current Plaintiffs in this matter with, including counsel and any experts, consultants, etc.

In addition to the instant lawsuit, Plaintiffs’ counsel is misusing their characterizations of the stolen documents, data, and/or property provided by their client(s). In Cerjanec, upon the Court’s questions to Plaintiffs’ counsel regarding whether the documents filed under seal in the instant matter are part of the record in the Cerjanec matter (Dkt. 62, PgID 2182-2184), Plaintiffs’ counsel Shereef Akeel admitted, what is supporting our disparate impact claim, part of it are the statistics that have been filed under seal [in Carthens]. It’s not like we’re coming out of thin air and we don’t have the statistics. They are there.

Id. PgID 2183, see also Cerjanec Dkt. 53 at 10 (stating in response brief to FCA US’s Motion to Dismiss that “Plaintiffs filed supporting evidentiary data under seal in the concurrent class action case against Defendant.”). Such actions should not be condoned.

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B.

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The Defend Trade Secrets Act is Inapplicable to M. Williams’ Misconduct Based upon their prior statements, FCA US anticipates that Plaintiffs will

argue that the DTSA somehow legitimizes their misuse and characterizations of stolen documents, data, and/or property. Such a claim is contradicted by the express language of the DTSA. The DTSA creates a federal private right of action for misappropriation of trade secrets. The statute contains limited immunity for individuals who disclose “trade secrets� but in completely different circumstances from those herein: (b) Immunity from liability for confidential disclosure of a trade secret to the Government or in a court filing. -(1) Immunity.--An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that-(A) is made-(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

(2) Use of trade secret information in anti-retaliation lawsuit.-An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual-(A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.

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18 U.S.C. § 1833(b).

Notably, the DTSA provisions provide immunity from liability “for confidential disclosure of a trade secret” under a “Federal or State trade secret law” or in a retaliation suit if the employee follows the statutory requirements when making a disclosure. Id. (emphasis added). The statute does not provide immunity from liability when an employee steals documents, data, and/or property in violation of a confidentiality agreement or in breach of his or her fiduciary duties for purposes of pursuing personal interests in an action such as this, particularly where there is no claim by FCA US that the documents, data, and/or property M. Williams stole constitute “trade secrets” as defined by state or federal law. And the statute does not provide immunity when an employee wrongfully retains and discloses attorney-client privileged or work product-protected documents, data, and/or property. Indeed, the Committee Report stressed “that this provision immunizes the act of disclosure in the limited circumstances set forth in the provision itself; it does not immunizes [sic] acts that are otherwise prohibited by law, such as the unlawful access of material by unauthorized means.”

2015 FD S.B. 1890 (NS) at 16 (emphasis added) (Ex 13).

Moreover, even if the statute applied to M. Williams individually, which it does not, she is no longer a party of this lawsuit and was never a party to the Cerjanec suit and the statute does not authorize M. Williams to share confidential 18

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information with other remaining Plaintiffs for their own use in the instant lawsuit, nor does it authorize third parties to use that confidential information to form the basis of other lawsuits against FCA US that M. Williams is not even party to.

Additionally, even if the statute applied to M. Williams individually, which it does not, its immunity provision is expressly limited to claims brought “under trade secret law for the disclosure of a trade secret.” In other words, the statute might theoretically have some pertinence if FCA US had filed a trade secret claim against M. Williams, but it has not done so. In no way does the DTSA authorize the wholesale sharing and use of non-trade secret, confidential documents, data, and/or property – as M. Williams and her counsel have done here.

IV.

CONCLUSION

For the foregoing reasons, FCA US requests that the Court: (1) strike all references in the TAC purportedly based on FCA US’s documents, data and/or property stolen by former plaintiff M. Williams including, but not limited to, paragraphs 40, 41, 62, 67, 68, 69, 70, 71, 72, 86, 88, 93, 94, 100, 105, 106, 107, 109, 117, 123, 124, 127, 129, 135, 140, 141, 147, 149, and 155 of the TAC; (2) strike all stolen documents, data, and/or property Plaintiffs filed under seal (Dkts.

9, 10, 10A, and 11); (3) preclude Plaintiffs and Plaintiffs’ counsel from relying on FCA US’s documents, data, and/or property obtained outside the discovery process; (4) require Plaintiffs and their attorneys to provide an accounting of and

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return to Defendant all stolen documents, data, and/or property; and (5) require Plaintiffs and their attorneys to provide an accounting of each and every person or entity that they shared any FCA US documents, data, and/or property stolen by any current or former plaintiffs in this matter with, including counsel and any experts, consultants, etc.; and award FCA US all other relief necessary to fully resolve issues relating to the documents, data, and/or property stolen by M. Williams and/or any other current or former Plaintiff.

Respectfully submitted, /s/Jerome R Watson (P27082) Miller, Canfield, Paddock and Stone, P.L.C. Attorney for Defendant 150 West Jefferson, Suite 2500 Detroit, Michigan 48226 (313) 963-6420 watson@millercanfield.com

/s/Daniel E. Turner (Ga. Bar No. 719330) Littler Mendelson, P.C. Attorney for Defendant 3344 Peachtree Road N.E., Suite 1500 Atlanta, GA 30326 (404) 233-0330 dturner@littler.com

February 4, 2019

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CERTIFICATE OF SERVICE I hereby certify that on February 4, 2019, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to: Shereef H. Akeel Hasan Kaakarli Michael L. Pitt Megan A. Bonanni Robert W. Palmer Carey S. McGehee

shereef@akeelvalentine.com hasan@akeelvalentine.com mpitt@pittlawpc.com mbonanni@pittlawpc.com rpalmer@pittlawpc.com cmcgehee@pittlawpc.com /s/Jerome R Watson (P27082) Miller, Canfield, Paddock and Stone, P.L.C. Attorney for Defendant 150 West Jefferson, Suite 2500 Detroit, Michigan 48226 (313) 963-6420 watson@millercanfield.com

32735984.12\155704-00005

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