10:20, August 25 331 0 law.com

2017-08-25 10:20:05
Lawyers Sanctioned for Filing Confidential Information in Grubhub Suit

Shannon Liss-Riordan.

Jason Doiy / The Recorder

SAN FRANCISCO ­– A federal magistrate judge on Thursday sanctioned a law firm for publicly filing documents containing Grubhub Inc.’s confidential information in a lawsuit claiming the delivery service misclassified workers as contractors.

“I’m going to grant the motion for sanctions,” U.S. Magistrate Judge Jacqueline Corley of the Northern District of California said at a hearing. “It was absolutely inexcusable to do that filing without redacting that information.”

Boston labor law firm Lichten & Liss-Riordan will have to pay Grubhub at least $15,000 to cover legal fees the company incurred in responding to the breach, Corley said. Grubhub is represented by a team of lawyers at Gibson, Dunn & Crutcher led by partner Theodore Boutrous Jr.

Shannon Liss-Riordan­—the attorney leading the case against Grubhub–apologized for the filing, which was made by a junior attorney at her firm named Thomas Fowler. But she downplayed the incident as a “technical error.”

“It is not a technical error,” Corley retorted. “It is, in fact, an egregious error.”

Corley said she was issuing the sanctions to underscore that litigants must carefully protect confidential information. Disclosures like the one made by Liss-Riordan’s firm, the judge said, make it harder for plaintiffs generally to get access to sensitive business records in discovery.

“By doing so, you make every other next case difficult,” she said. “It just wasn’t OK. [The sanctions motion] frankly shouldn’t have been defended.”

The filings in question were made as part of a response to a motion for summary judgment shortly before midnight on June 8. In a submission to the court, Gibson Dunn attorney Dhananjay Manthripragada said he noticed filings of unredacted depositions and business records and notified Liss-Riordan and Fowler in an email at 5:01 a.m. on June 9.

Fowler responded that due to “technical issues,” he had trouble preparing a redacted version of the brief, and said he would contact the court as soon as it opened. The documents were subsequently locked, but the confidential information was publicly available for a number of hours overnight.

Following the hearing, Liss-Riordan laid part of the blame on Grubhub’s attorneys for failing to specify more clearly what parts of the depositions and other records were actually confidential, requiring her firm to fully redact hundreds of pages of documents.

It was a rough day for Liss-Riordan, who is also suing Uber Technologies Inc. in a more high-profile case alleging driver misclassification that is currently stayed pending appeals on class certification and arbitration issues at the U.S. Court of Appeals for the Ninth Circuit.

In a hearing earlier in the day at the same courthouse, U.S. District Judge Edward Chen of the Northern District of California found that Liss-Riordan had violated a court-issued protective order by using a list of California Uber drivers certified as class members to drum up potential business. She had emailed the roughly 240,000 drivers to inform them that if her arguments against arbitration failed at the Ninth Circuit, she could represent them in individual actions against Uber.

Chen found that was a misuse of the class member list that Uber provided, and that she had improperly made it seem like her firm was the only one that the drivers could go through. He indicated he would require a notice informing them that they are free to hire another attorney.

With the Uber case on hold and a similar action against Lyft Inc. having settled, the suit against Grubhub may end up being the first to test what rights workers should have in the “gig economy.” The case is set to go to a bench trial in front of Corley starting Sept. 5.