Labor Department lawyers must turn over some of their communications with private plaintiffs’ attorneys suing Oracle America Inc., following a judge’s order in a separate pay discrimination case the agency brought against tech company.
The DOL’s Office of Federal Contract Compliance Programs is required to share documents related to “common interest agreements” it has with the attorneys suing Oracle for pay discrimination on behalf of a group of women workers, so long as they are relevant to the department’s own case against the company. The OFCCP says Oracle shorted women and minority workers $400 million in wages by paying them less than other employees, and steering them into jobs at lower-level positions.
An administrative law judge in a June 10 order partially granted Oracle’s request for more information. The DOL doesn’t have to produce communications involving the private litigation that don’t implicate the government’s suit. The judge also ordered Oracle to give Labor Department lawyers some expert reports related to the separate case in a separate June 10 ruling.
Current and former DOL officials have previously described common interest agreements as “routine and consistent,” and said they’re used to share information between lawyers who have common interests or clients. Critics say the deals may give plaintiff’s lawyers access to documents and information obtained by the government that the attorneys wouldn’t otherwise be able to get in federal court.
“Oracle is entitled to investigate the case and OFCCP’s basis for its case, regardless of what evidence OFCCP eventually decides to put on,” Clark wrote.
Clark also rejected the agency’s argument that all of its communication with current and former Oracle employees is privileged information that’s shielded from Oracle’s discovery requests. However, he said the company can’t obtain names or “other identifying information for current and former Oracle employees who are government informants from the documents produced.”
The judge’s decision to keep the identity of government informants redacted would prevent any potential retaliation against those employees, Adam Pulver, a former DOL lawyer said. He’s currently a lawyer with Public Citizen.
“Experience and legion case law make clear that when workers’ identities are revealed in situations like this, workers clam up; the management bar knows that and takes advantage of that,” he said.
The OFCCP, which polices anti-discrimination requirements for businesses that work with the government, uncovered what it called rampant hiring and pay bias at Oracle through a random audit. The hiring claims have since been settled, but discovery related to the pay bias claims will continue.
Oracle declined to comment on the pending litigation, and the OFCCP didn’t respond to a request for a comment before publication.
Private Litigation Documents
In a separate June 10 ruling, Clark said the Labor Department is entitled to some documents from Oracle related to Jewett v. Oracle America Inc., the ongoing parallel class discrimination case it’s defending against private litigants. The employees in that case say they were paid less than men doing the same job.
OFCCP requested “all unredacted deposition transcripts and exhibits, which Oracle must supplement with any future depositions taken in Jewett, including all expert depositions, all produced expert materials, written discovery requests and responses, and meet-and-confer correspondence.”
Oracle will turn over portions of the requested expert reports and depositions, and some of the discovery requests and responses, but only those that pertain to company headquarters. That’s because the private class discrimination case includes other facilities. The judge denied the agency’s request for meet-and-confer correspondences between Oracle and the private plaintiffs’ attorneys.
The scope of common interest agreements has been a contentious issue throughout the litigation. Oracle claims they weren’t aware that government attorneys had ties with private plaintiffs’ counsel, but the agency has maintained that they routinely team up where common claims are being brought against a company that’s also a federal contractor.
“I am pleased to see the Court recognized that generally, there is nothing untoward about a common interest agreement between OFCCP lawyers and private lawyers, and thus declined to allow a fishing expedition into the formation of that case—finding it didn’t even meet the low bar of relevance,” Pulver said.
The parties must turn over the information within 25 days of the order.
The case isOFCCP v. Oracle Am. Inc., Dep’t of Labor A.L.J., No. 2017-OFC-00006, Order 6/10/19.