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CMCP Diversity Matters Winter 2015 Newsletter


Winter 2015 1

CMCP Diversity Matters 2015 eNewsletter Committee Members

Tambry L. Bradford

Cassandra Mougin

(Co-Chair) Special Counsel Pepper Hamilton LLP

(Co-Chair) Shareholder Pettit Kohn Ingrassia & Lutz, PC

Michael Chung

Of Counsel Willenken Wilson Loh & Delgado LLP

Karen A. Henry

Noah Perez-Silverman

Kelly Perigoe

David Shimkin

Jonathan Turner

Member Cozen O’Connor

Partner Mitchell Silberberg & Knupp LLP

Associate Caldwell Leslie & Proctor, PC


Counsel Davis Wright Tremaine LLP

Associate Caldwell Leslie & Proctor, PC

Winter 2015 Newsletter

Table of Contents

page 3

Attorney Spotlight Series: CMCP Executive Director, Robert White

page 4

Employer Alert re California Fair Pay Act

page 6

CMCP 26th Annual Business Conference Highlights

page 11

Meet Your New CMCP Board Members – Attorney Spotlight Series: Sharon Tomkins, Vice President & General Counsel, Southern California Gas Company

page 14

California Supreme Court Raises the Bar for Recovery of Costs by Prevailing Defendants in FEHA Cases

page 15

Business Development Series: When it Comes to Business Development, Everyone is a Solo

page 17

AB1141 Amends California Code of Civil Procedure

page 18

The Revised Federal Rules of Civil Procedure: Proportionality is King

page 20

Diversity Calendar Mark Your Calendars for Upcoming Diversity Events


CMCP Diversity Matters


CMCP Executive Director, Robert White By: Karen A. Henry, Counsel, Davis Wright Tremaine LLP

Karen Henry, Counsel in Davis Wright Tremaine's media practice sits down with new Executive Director Robert White of the California Minority Counsel Program in this interview.

This video will open in a new webpage.

Karen Henry is Counsel at Davis Wright Tremaine’s Los Angeles office. Litigating in state and federal court, Karen maintains a broad and diverse practice, focusing primarily on media, IP, and entertainment law. In her practice, she defends clients in a range of matters, including copyright, trademark, right-of-publicity, theft of ideas, defamation, and invasion of privacy litigation. For more info about Karen, click here.


Winter 2015 Newsletter

Employer Alert re California Fair Pay Act By: Jonathan M. Turner, Partner, Mitchell Silberberg & Knupp LLP


f they have not already done so, California employers must take steps to see that their pay practices conform to the new standards established under the California Fair Pay Act (“CFPA”), which becomes effective on January 1, 2016. The CFPA amends section 1197.5 of the California Labor Code, which prohibits employers from paying employees at wage rates “less than employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” Since the enactment of Section 1197.5 in 1949, employees who could establish the existence of a gender-based pay differential “for the same work in the same establishment” could sue to recover for the amount of the pay differential; however, according to the legislative findings giving rise to the enactment of the CFPA, Section 1197.5 has been “rarely utilized because the current statutory language makes it difficult to establish a successful claim.”1 The legislature also found that “pay secrecy” contributes to gender-based wage disparities “because women cannot challenge wage discrimination that they do

not know exists.”2 Hence, in passing the CFPA, the state legislature declared its intent to make it easier for employees to sue and recover under the statute. What follows is a summary of the CFPA and how its enactment amends existing law under section 1197.5. Expansion of the statutory mandate that employers must pay employees equal pay for equal work Under the current statute, employees are able to recover on gender-based wage disparity claims for jobs that require “equal skill, effort and responsibility, and which are performed under similar working conditions,” when compared to jobs performed by employees of the opposite sex at the same establishment. The CFPA expands the scope of wage disparity claims that can be pursued, both in terms of the similarity of jobs that are being compared, and the location where those jobs are being performed. Continued on next page… 1. 2.

SB 358, Section 1(c). SB 358, Section 1(d).


CMCP Diversity Matters Under the CFPA, equal pay is required for “substantially similar work, when viewed as a composite of skill, effort and responsibility, and performed under similar working conditions.” Additionally, the CFPA removes the “same establishment” requirement when making the comparison; hence, employees will be able to pursue equal pay claims based on evidence that employees of the opposite gender working at another facility are being paid more.

conditions of employment of its employees for two years. The CFPA expands this time frame to three years.

Protections for employees who discuss or request wage information The CFPA includes a provision outlawing any employer policy that prohibits an employee from “disclosing the employee’s own wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise Defenses to claims for gender-based wage his or her rights under this section.” Although the differentials CFPA prohibits employers from retaliating against Under the current law, an employer can defend against employees who request that their employer provide gender-based claims of wage disparity by proving that them with wage information regarding co-workers, any such disparity is based on one of the following the CFPA does not obligate the employer to provide criteria: (1) a seniority system, (2) a merit system, (3) a employees with this information. system which measures earnings by quantity or quality Remedies for wage disparity violations under CFPA of production, or (4) a differential based on any bona fide factor other than sex. While the CFPA does not The CFPA makes no change to what employees can abolish these defenses, it has made it more difficult recover for gender-based wage disparity claims. for employers to prevail on them. The CFPA clarifies Employees who prevail on such claims are entitled to that the employer has the burden to demonstrate that the amount of the wage differential that was withheld, one or more of these criteria accounts for the disparity. plus an equal amount as liquidated damages, and With respect to the fourth criteria, the employer must prejudgment interest. The recovery period is two demonstrate that: (1) the factor other than sex is not years from the filing of an action, except that an action based on or derived from a sex-based differential arising out a willful violation extends the recovery in compensation; (2) the factor is job-related with period to three years. respect to the position in question; and (3) the factor is consistent with a “business necessity.” Attorney’s fees are also recoverable by plaintiffs who prevail on claims under the CFPA. In order to demonstrate “business necessity,” the employer now must prove that the wage disparity For an analysis of the predicted effect of the CFPA achieves “an overriding legitimate business purpose on legislation, check out the next issue of the such that the factor relied upon effectively fulfills the CMCP Newsletter. business purpose it is supposed to serve.” Further, the defense will not apply “if the employee demonstrates that an alternative business practice exists that would serve the same business purpose without producing the wage differential.” Employer record keeping requirements expanded from two to three years Under the current statute, employers are required to maintain files containing pay records of the wages and wage rates, job classifications, and other terms and


Jonathan Turner is a partner in the Los Angeles office of Mitchell Silberberg & Knupp LLP. A significant portion of his practice is in the motion picture industry, where he has represented studios and other employers in labor arbitrations, administrative proceedings, court litigation, union avoidance issues, and collective bargaining negotiations. For more info about Jonathan, click here.

Winter 2015 Newsletter

CMCP 26th Annual Business Conference Highlights Watch the keynote address by Karen Roberts, Executive Vice President and General Counsel, Wal-Mart Stores, Inc. Click below to launch the video.


CMCP Diversity Matters


Winter 2015 Newsletter


CMCP Diversity Matters



SHARON TOMKINS – Vice President and General Counsel, Southern California Gas Company By: Noah Pérez-Silverman, Associate, Caldwell Leslie & Proctor, PC


haron Tomkins, Vice President and General Counsel of Southern California Gas (“SoCalGas”), loves engaging with cutting edge issues. Indeed, she decided to focus her career on energy and regulatory work in large part because the energy sector is so dynamic: the rules and guidelines for greenhouse gas emissions are constantly changing, with both legislators and the public showing increasing interest in energy efficiency. In this energy climate, Sharon loves being in a position to make sure that SoCalGas (and its parent, Sempra Energy) is making smart choices to move the energy sector forward in a thoughtful way. Her desire to tackle cutting edge issues also led her to join the Board of the California Minority Counsel Program (“CMCP”) during a time of transition. With Executive Director Emeritus Marci Rubin


handing the reins to incoming Executive Director Robert White, Sharon is excited to help the organization handle the transition smoothly and continue to be as effective and engaging as it was under Marci’s stewardship. A brief look back at Sharon’s impressive career might give the impression that Sharon has

always had a laser-like focus on energy work. She started doing regulatory energy work shortly after beginning her legal career at O’Melveny & Myers LLP. When she became a partner at O’Melveny, she focused her practice on the energy sector. She founded the firm’s Energy, Natural Resources & Environmental Practice. She taught a course on Energy Law, Policy and Climate Change at UCLA Law School. And she has published several articles on legal challenges facing the energy sector. In truth, however, Sharon’s path was anything but predetermined, and she acknowledges that her career has been shaped not only by her own drive but also by a number of mentors who guided her into the profession and field she now occupies. After growing up in northern Idaho and

Winter 2015 Newsletter

graduating from Pennsylvania State University with a degree in English, Sharon initially considered pursuing a Ph.D. in the same discipline. But her sister-in-law, a lawyer at Gibson, Dunn & Crutcher LLP, convinced her she would enjoy being a lawyer. Sharon took this advice, thrived at USC Law School, and at the encouragement of her civil procedure professor, applied for and secured a clerkship with the Honorable Danny J. Boggs on the Sixth Circuit Court of Appeals. After clerking, Sharon joined O’Melveny’s Los Angeles office. During the California energy crisis at the beginning of the millennium, Sharon was assigned to work on an energy matter. Although she had not taken energy courses in law school— indeed, most law schools did not offer energy courses at the time— she dived in and immersed herself in the world of regulatory energy work. She speaks with great admiration of several mentors she had at O’Melveny. John Daum, in particular, stands out. While walking to the courthouse for hearings in a case they worked on together, John would tell Sharon his strategy for the hearing, and on the walk back, he would unpack why he may have changed his strategy mid-stream. Sharon found John’s willingness to explain his strategic thinking invaluable. By the time Sharon made partner, she had a wealth of experience in both energy regulatory work

and securities fraud litigation, but she decided to focus on energy work, in large part because of the exciting challenges of the constantly changing energy landscape. Sharon took a six month secondment to SoCalGas, and when an opportunity arose to move in-house at Sempra several years later, Sharon took it. In September 2014, Sharon was elevated to General Counsel of SoCalGas. As General Counsel, Sharon oversees a legal department that comprises 23 lawyers who are divided into four main practice areas: regulatory, litigation, commercial, and environmental. Although she practices law less than she did before becoming GC, she enjoys spending more time thinking strategically about the business side of SoCalGas: how to grow the company while also dealing with regulatory rulemaking, ratemaking procedures from the California Public Utilities Commission, and new legislation. When new legislation or agency procedures are proposed or passed, Sharon strategizes about how SoCalGas fits into the picture. With the development of more forms of renewable energy, smart meters, electrical vehicles and more, there has never been a more exciting time to be part of the energy sector. Key challenges Sharon identifies include making sure the overall energy grid remains reliable despite the introduction of renewables into

the energy portfolio, and thinking about how natural gas fits into that portfolio as a base fuel to help support renewables. Having benefitted from strong mentorship during her career, Sharon prioritizes mentoring junior attorneys. Sharon makes a point of getting to know the attorneys she supervises and providing them substantive feedback. Her first piece of advice, perhaps unsurprisingly, is to develop one’s skills as a lawyer, because at the end of the day the quality of the work is paramount. But she is also quick to acknowledge that the value of networking cannot be underestimated. With this understanding and her focus on mentorship, it should be no surprise that Sharon jumped at the opportunity to join CMCP’s Board. She was introduced to the organization by Dave Smith, former General Counsel of both SoCalGas and San Diego Gas & Electric, who still serves on the Board. Since his time on the Board as GC of SoCalGas/SDGE was coming to an end due to his retirement from the company, he suggested Sharon get involved. At the time, Sharon was not very familiar with CMCP; but after attending the annual conference and meeting former Executive Director Marci Rubin, Sharon knew it was an organization she could get passionate about. Continued on next page…


CMCP Diversity Matters Sharon cares deeply about diversity in the legal profession, and she is acutely aware of the challenges facing both women and minority lawyers. She applauds CMCP’s focus on providing valuable networking opportunities to lawyers who are underrepresented in the legal profession, particularly at the partnership and executive levels. Sharon admires how CMCP manages to be relevant to both firm lawyers and in-house lawyers, and in her leadership role, she hopes to help CMCP continue that dual focus. Sharon ardently hopes the legal profession eventually reaches a point where its membership reflects the larger society. And as the profession diversifies, she hopes lawyers do not lose sight of

their individuality. Her final piece of advice for junior lawyers is to be authentic to themselves: “If you do not feel comfortable being yourself at your current job, it probably is not the right place for you.” In fact, she offers the same advice—with perhaps even more emphasis—to attorneys in senior positions, who might cast a larger shadow: “When bosses are authentic, it shows junior attorneys they can succeed by being their genuine selves, as well.” As for the authentic Sharon Tomkins? She is an avid cyclist who also enjoys running and lifting weights. She loves spending time with her husband and four children. And she is a literature enthusiast, as well. She is currently reading The Jaguar’s Children, John Vaillant’s first piece of

Noah Pérez-Silverman is an Associate at Caldwell Leslie’s Los Angeles office. Noah has an impressive breadth of experience. He has handled complex privilege issues, supervised voluminous electronic discovery projects, and helped obtain terminating sanctions against an adversary for litigation misconduct. For more info about Noah, click here.


fiction, about immigrants who use coyotes to come to the United States and get trapped mid-route. Her love of literature also led her to serve on the Board of the Library Foundation of Los Angeles, which supports the educational programming of the LA Library, including tutoring and other services. She also serves on the Board of the Constitutional Rights Foundation, which is focused on educating youth about civic engagement and democracy. As these activities demonstrate, Sharon is dedicated to helping support the next generation, a dedication that she will certainly use to enrich CMCP.

Winter 2015 Newsletter

California Supreme Court Raises the Bar for Recovery of Costs by Prevailing Defendants in FEHA Cases By: Jennifer N. Lutz, Shareholder, Pettit Kohn Ingrassia & Lutz PC


n Williams v. Chino Valley Independent Fire District, the California Supreme Court held that a prevailing defendant in a California Fair Employment and Housing Act (“FEHA”) case can only recover costs of suit where the plaintiff’s action was objectively groundless.

discretion of the trial judge: “[i]n civil actions brought under this section, the court, in its discretion, may award to the prevailing party, reasonable attorneys’ fees and costs.” Thus, the trial court has discretion in deciding whether to award ordinary court costs to a prevailing defendant in a FEHA action.

Loring Williams (“Williams”) worked as a firefighter for Chino Valley Independent Fire District (“Chino Valley”). Williams sued Chino Valley, alleging disability discrimination in violation of the FEHA. The trial court granted summary judgment in Chino Valley’s favor and awarded it costs totaling $5,368.88. The court of appeal affirmed, holding that the prevailing party was entitled to court costs as a matter of right pursuant to Code of Civil Procedure section 1032(b) (“Section 1032(b)”). A defendant/employer, however, may only be awarded attorneys’ fees if the plaintiff’s suit was baseless and unfounded.

In holding that a prevailing defendant should only recover its costs and attorneys’ fees if the plaintiff’s action was objectively groundless, the California Supreme Court opined that plaintiffs should not be forced to bear such a high risk in order to “vindicate their statutory right against workplace discrimination.” Because even ordinary litigation fees can be substantial, the possibility of their assessment could significantly chill the vindication of employees’ civil rights.

On appeal, the California Supreme Court held that a defendant prevailing in a FEHA action is entitled to recover its ordinary costs only in the discretion of the trial court. Section 1032(b) guarantees that prevailing defendants are “entitled as a matter of right” to recover the costs expended in litigation “[e] xcept as otherwise expressly provided by statute.” The California Supreme Court reasoned that Section 12965(b) of the Government Code expressly excepts parties in a FEHA action from this entitlement. FEHA explicitly states that costs are awarded in the

Pursuant to this ruling, a prevailing plaintiff will generally be able to recover his or her costs and attorneys’ fees while a prevailing defendant likely will not be awarded costs or attorneys’ fees unless the court determines that the plaintiff’s claims were frivolous.

Jennifer N. Lutz focuses her practice in employment litigation and counseling. Jennifer represents California’s employers in all aspects of employment disputes in state and federal court, and before administrative and government agencies. For more info on Jennifer, click here.


CMCP Diversity Matters Business Development Series:

When it Comes to Business Development,

Everyone is a Solo By: Martha Sullivan, Principal, Thornton Marketing

My coaching clients often ask if there is a difference between marketing plans for solo practitioners and those created by lawyers who work in large firms. Ultimately, your marketing plan is based on your individual goals. Your plan may include tasks related to your practice group, or the geographic location of your office, but when you’re out in the world, you are selling your own relationship to potential clients and referral sources. There can be an advantage to being part of a firm or a practice group that can complement your expertise. Obviously, there are many clients who need full-service firms, but there are just as many clients who need only one specific set of skills at certain times.


Winter 2015 Newsletter

Assuming that you have a written marketing plan (and of course, you have one), here are four suggestions for fine-tuning your business development efforts.

1 2 3 4

Differentiate Your Practice

For most lawyers, it is daunting to figure out a way to stand out in a large firm, particularly as an associate. Aurelio Perez, an associate at Littler, understood early on that he was competing for attention with more than 1,000 other employment lawyers within his firm. On the business development panel at the CMCP Annual Conference in October, he talked about building his practice. He found a way to market one unique skill and create an identity for himself: he has become “the guy who knows about the garnishment of wages in employment cases.” As he likes to say, “There are riches in niches.” He has found a way to differentiate himself in a memorable way. Even though he represents a large firm, he is, in essence, a solo practitioner. Unlike true solos, his potential clients include hundreds of internal colleagues in offices all over the country.

Implement Your Marketing Plan

If you are one of those lawyers who are reluctant to create their own marketing plan, you may be assuming that “someone else” in your firm will magically find clients and create work for you. If you start to plan like a solo, and know that you are fully responsible for revenue goals, you will behave differently. You will attend the networking events that you might have avoided in the past. You are more likely to join an association and volunteer for a committee, instead of letting one of your colleagues reap the benefits. To become more visible, you might even speak at an industry event. And you’ll continue to implement your marketing plan, even when the siren song of billable hours calls you.

Make Client Retention a Priority

Solo practitioners tend to focus on client retention. They have a clear understanding of the direct relationship between satisfied clients and a steady revenue stream. They know how difficult it can be to acquire new clients and how much effort it takes to replace a client. They don’t have the luxury of ignoring client service issues, from communication styles to invoicing formats to overall responsiveness. Even if you are sure that you handle these issues well, it is worth the effort to ask your clients for their evaluation. If you have seen the studies that compare in-house counsel opinions about client service and their outside counsel self-evaluations, you know that there is a significant gap in the scores, and not in a positive way.

Own the Relationship

For a solo practitioner, there is no question about who “owns” the client. Obviously, that is a more difficult issue in large firms, particularly when originations determine compensation. Setting aside the political issues about originations for the moment, if you market like a solo and provide client service like a solo, you increase the possibility of owning and managing the long-term relationship with your client. Martha Sullivan is a business development coach for attorneys and other professional service providers. She is certified as a professional coach and has more than 25 years of experience in marketing and business development. For more info about Martha, click here.


CMCP Diversity Matters

AB1141 Amends California Code of Civil Procedure By: Jennifer N. Lutz, Shareholder, Pettit Kohn Ingrassia & Lutz PC


B 1141, which was passed on September 28, 2015 and made effective January 1, 2016, revives an expired procedure for filing a motion for summary adjudication to facilitate resolution of a case. A change in the law in 2011 previously amended Section 473c of the Code of Civil Procedure. Under that change, courts were allowed, from January 1, 2012 until December 31, 2014, to summarily adjudicate portions of major causes of action or affirmative defenses, without resolving the entire cause of action or affirmative defense in the case. This change in the law required that both parties stipulate that the resolution of the issue by the court would either: (1) reduce the time of trial; or (2) significantly increase the ability of the parties to resolve the case by settlement. According to an article in the California Bar Journal, To Summarily Adjudicate or Not Adjudicate: The Recent Amendments to Section 437c, the amended statute provided necessary and long-awaited benefits to both defense and plaintiff attorneys. ( www.calbarjournal. com/march2012 ). However, the amended statute, which was codified under subsection (s) of Section 437c, expired on January 1, 2015. AB 1141 reenacts this summary adjudication provision, allowing courts to grant motions to resolve certain issues within a cause of action, thereby improving judicial economy, reducing the duration of trials, and encouraging pretrial settlements. Under the new amendment, before filing a motion for summary adjudication, the moving party must file with the court: (1) a joint stipulation stating the issue or issues to be adjudicated and (2) a declaration from


each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement. The moving party must then serve the joint stipulation on any party to the action who is not also a party to the motion. CCP 437c(s). Within 15 days of receipt of the stipulation and declarations, the court will notify the stipulating parties as to whether the motion may be filed. If the court elects not to allow the filing of the motion, the stipulating parties may request, and upon request the court will conduct, an informal conference with the stipulating parties to permit further evaluation of the proposed stipulation. If the motion is allowed, the motion must contain a statement in the notice of motion that reads substantially similar to the following: “This motion is made pursuant to subdivision (s) of section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear this motion and that the resolution of this motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.” In addition to amending the code section governing summary adjudication, AB 1141 also amends Code of Civil Procedure section 998 to equalize the treatment of expert witness costs that are awarded to a defendant and plaintiff after the other side’s rejection of the settlement offer so that a court can order a defendant, like a plaintiff, to pay the other side’s costs of the pre-offer, as well as the post-offer services of an expert witness. As one court explained, the policy behind a 998 offer is to encourage settlement and provide a severe penalty for failing to settle when the result after trial is less favorable than the offer that was made to settle the case before trial. See Bank of San Pedro v. Superior Court, 3 Cal.4th 797, 804 (1993). This policy is to encourage settlements in order to save court time and reduce court congestion because courts are already overburdened. The legislature also recognized a need for equity in the court's discretion to award expert

Winter 2015 Newsletter

witness costs after the rejection of a 998 offer to settle. This bill addresses the inequity in treatment of expert witness costs upon rejection of a settlement offer. It appears that in a 2005 non-controversial omnibus bill, the word "postoffer" was inserted into subdivision (d) of section 998 of the Code of Civil Procedure. This amendment created what appears to be an unintended inequity between defendants and plaintiffs relating to the discretionary authority of a trial court to award expert witness costs after one party’s rejection of a 998 settlement offer. Before AB 1141, if the plaintiff rejected a 998 settlement offer made by the defendant and failed to receive a better award at trial, the plaintiff could, at the court’s discretion, be required to pay the defendant’s preand post-offer expert witness costs. However, if the defendant rejected the plaintiff’s 998 settlement offer and failed to receive a more favorable judgment or award at trial, the court only had the discretion to order the defendant to pay the plaintiff’s postoffer expert witness costs. By removing the word "postoffer" from Section 998 (d) of the Code of Civil Procedure, AB 1141 allows both a plaintiff and a defendant to recover pre- and post-offer expert witness costs if the opposing party rejects a 998 settlement offer and receives a less favorable result at trial. The Assembly Judiciary Committee was unable to locate any materials indicating that the addition of the word "postoffer" to CCP Section 988(d) was intentional and was not aware of any reason why the Legislature would want to treat the parties differently in terms of their ability to recover expert witness costs if their good faith pre-trial settlement offers are rejected. This bill provides the remedy by equalizing the costs for both plaintiffs and defendants in 998 settlement situations. Jennifer N. Lutz focuses her practice in employment litigation and counseling. Jennifer represents California’s employers in all aspects of employment disputes in state and federal court, and before administrative and government agencies. For more info on Jennifer, click here.

The Revised Federal Rules of Civil Procedure: Proportionality is King By: André De La Cruz, Associate, Sheppard, Mullin, Richter & Hampton LLP


s most federal practitioners are aware, certain amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015. The underlying objective of this year’s amendments is to resolve cases more quickly, more fairly, and with less expense incurred. Specifically, Rules 26 and 37 were amended to rein in out-of-control expenses associated with the collection, processing, review, and production of electronically stored information (ESI). Historically, parties have engaged in the practice of over-collecting and over-producing electronic records comprising millions of pages—a very time consuming and expensive process when one takes into account the corresponding laborious review. Yet, in most instances, only a fraction of ESI produced in discovery is ultimately admitted into evidence. In addition, whether sound or not, many attorneys (in-house and outside counsel) turn over the responsibility of collecting potentially responsive files to someone in the organization who is not an attorney (e.g., custodian of records, etc.). This “self-collection” naturally results in “self-culling.” The Rules Committee has taken note of this tedious and taxing process and, as a result, has embraced efforts to address to bring consistency and efficiency to all new cases, and to a certain extent, cases pending as of December 1, 2015.1 Continued on next page…


CMCP Diversity Matters One example of the way in which the amendments are intended to limit ESI-related expenses is an amendment to Rule 26(b)(1), which now requires that discovery sought not only be relevant to a claim or defense, but also be “proportional to the needs of the case.” While the proportionality concern has been considered by many courts in the past, the parties have to expressly consider factors such as: (1) the key issues at stake; (2) the amount in controversy; (3) a party’s access to information; (4) a party’s resources; (5) the importance of the discovery; and (6) whether the burden or expense is outweighed by its benefit. Markedly, the Committee Note cautions against an opposing party outright refusing discovery by making boilerplate objections that the discovery sought is “not proportional” to the needs of the case, noting that the parties and the court have the “collective responsibility” to consider proportionality in an effort to resolve discovery disputes—not to propagate them. Moreover, for the first time, the Committee Note to Rule 26 officially validates the use of “computer-based methods of searching” for information when dealing with large volumes of ESI, e.g., keywords or predictive coding.

¹ “That the foregoing amendments to the Federal Rules of Civil Procedure shall take effect on December 1, 2015, and shall govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.” Order of the United States Supreme Court, April 29, 2015, available at frcv15(update)_1823.pdf, last accessed Nov. 28, 2015.

André De La Cruz, an associate at Sheppard Mullin’s Orange County office, primarily focuses on intellectual property litigation, patent and trademark prosecution, counseling, and licensing. His practice also includes experience with trade secrets, general litigation, and the representation of clients before the International Trade Commission in Section 337 investigations. For more info on Andre, click here.


Additionally, and mostly attributable to the rapid increase in the amount of published information or data, parties frequently expend excessive efforts to preserve all data remotely relevant to the claims or defenses in pending or reasonably foreseeable litigation—typically undertaken with the objective of avoiding severe sanctions. Rule 37(e) now addresses this issue. Rule 37(e) attempts to demarcate culpable and intentional loss of relevant data as “sanctionable,” yet acknowledges that the unintentional loss of data that does not prejudice the requesting party is innocuous and should not be met with sanctions. In other words, the Rules Committee wants to make clear that a “strict liability rule” does not automatically apply if information is lost. Notably, the Rule does not elaborate on what is required to establish that a party was prejudiced by the loss of data, but the burden of proof is placed squarely on the party seeking curative measures. Although many of the rules have been revised, Rules 26 and 37 certainly merit further review and analysis by every federal practitioner. Only time will tell whether these revisions will have their intended results.

Winter 2015 Newsletter

Diversity Calendar

January 14, 2016

January 21, 2016

January 28, 2016

ACBA 2016 Installation and Distinguished Service Awards

Snaps, Velcro or Zippers? A Conversation About Becoming a Judge, Good Judging, and Justice

38th Annual Dinner & Board Installation

5:30pm - 8:00pm

Alameda County Bar Association Rotunda Building - Oakland Read more

6:00pm - 7:30pm

Asian Pacific American Bar Association Los Angeles


Filipino American Lawyers of San Diego Westin - San Diego Read more

Asian Americans Advancing Justice - LA Read more

February 5, 2016

February 6, 2016

February 9, 2016

ABA Midyear Meeting GOOD GUYS Program

Save the Date! 56th Annual Installation of Officers & Awards Gala

Barristers Night Out: Golden State Warriors v Houston Rockets

National Conference of Women's Bar Associations

Mexican American Bar Association

Alameda County Bar Association

Manchester Grand Hyatt, Seaport Ballroom G, 2nd Level - San Diego


Oracle Arena - Oakland

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February 17, 2016

February 18, 2016

February 18, 2016

Sixth Annual Litigation Awards Dinner

SAVE THE DATE: Annual In-House Mixer

Beverly Hills Bar Association

Asian American Bar Association of the Greater Bay Area

SAVE THE DATE: OCBA Law Student Open House Section Specialty Day

2:00pm - 4:00pm

5:00pm - 9:00pm

6:00pm - 10:00pm

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Starts 5:30pm

Montage Beverly Hills - Beverly Hills

6:00pm - 8:00pm

5:30pm - 7:30pm

Orange County Bar Association


OCBA - Newport Beach

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March 5, 2016

March 18, 2016

March 18, 2016

SAVE THE DATE: OCHBA 38th Annual Scholarship Fundraiser & Installation Dinner

SAVE THE DATE - AABA’S Annual Installation Dinner

16th Annual Northern California Judicial Reception

Hispanic Bar Association Orange County

Asian American Bar Association of the Greater Bay Area

California Women Lawyers


Hyatt Regency San Francisco - SF

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CMCP Diversity Matters

CMCP Diversity Matters Winter 2015 Newsletter


Winter 2015

Š Copyright 2015 California Minority Counsel Program 465 California Street, Suite 635 San Francisco, CA 94104 Tel: 415-782-8990 Email: Web: 16

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California Minority Counsel Program Diversity Matters eNewsletter Winter 2015 Issue

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