Remember Lieff Cabraser Heiman & Bernstein's clever
discovery tactic of suing the Justice Department to obtain
discovery for private class actions filed in the wake of DOJ
anti-trust investigations? As I reported earlier this month,
the plaintiffs' firm has made something of a habit of filing
Freedom of Information Act requests for Justice Department
documents, and then, when DOJ doesn't comply, suing to get the
Most recently, Lieff filed a complaint in the Northern
District of California accusing the Department of stonewalling
on the firm's FOIA request for records of an anti-trust
investigation of recruiting practices at Google, Apple, Adobe,
Intel, Intuit, Lucasfilm, and Pixar. In a class action
follow-on to the DOJ investigation, Lieff represents thousands
of employees who claim the companies had mutual agreements not
to cold-call one another's workers.
The DOJ suit, Lieff partner Joseph Saveri told me Monday,
was an alternative route to the documents if the plaintiffs'
firm couldn't get the discovery directly from the defendants.
The defense, led by Google's lawyers at Mayer Brown, had, in
fact, filed a joint motion to stay all discovery in the case on
Oct. 19. "They had basically said, 'We're not giving you the
documents and all discovery should be stayed,'" Saveri said.
"We were asking for the same thing from different people."
But last week, U.S. District Judge Lucy Koh of San Jose
federal court said the defendants have to turn over the DOJ
documents to Lieff. In an Oct. 26 order she instructed the
defense to produce "relevant, non-privileged documents" related
to the Justice Department's anti-trust investigation. She
stayed all other discovery until a January hearing on the
defendants' motion to dismiss.
The judge also called on Lieff Cabraser to drop the DOJ
suit since it's now moot. Saveri said the plaintiffs' firm is
confident it will get just about everything it had wanted from
the government from the defendants instead.
I asked whether Lieff had sent a message to the judge and
the defendants by suing the DOJ to get the documents. "At some
level, we wanted to show we were going to get the documents one
way or another," he said. "Both are valid. It's probably easier
to get the material this way than by filing a suit against the
This isn't the end of Lieff's use of FOIA, though, Saveri
said. Or of suing the Justice Department to enforce FOIA access
to discovery materials. "It's called the Freedom of Information
Act," Saveri said. "Why not avail ourselves of those rights?"
Lee Rubin of Mayer Brown, who argued for the defendants at
the hearing on the motion to stay discovery, didn't respond to
a phone message.
(Reporting by Alison Frankel)
Follow Alison on Twitter: @AlisonFrankel
Follow us on Twitter: @ReutersLegal
(A previous version of this story stated that Lieff filed a
complaint against the Department of Justice in the Washington,
D.C., federal court. The suit was filed in the federal court
for the Northern District of California.)