Gilbert v. Bank of America, N.A. et al

Filing 325

ORDER by Judge Laurel Beeler re: 308 and 314 . The court denies the motion for leave to depose Jeffrey Wilens. (lblc1S, COURT STAFF) (Filed on 6/9/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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SEAN L. GILBERT, et al.,

Case No. 13-cv-01171-JSW (LB)

Plaintiff,

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v.

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DISCOVERY ORDER

MONEY MUTUAL, LLC, et al.,

[Re: ECF Nos. 294, 308, 314]

Defendants.

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INTRODUCTION

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The plaintiffs in this case challenge payday loans that they allege were illegal primarily

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because the lenders were unlicensed.1 The moving defendants2 want discovery and a deposition

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from the plaintiffs’ counsel about a possible consulting agreement that (they assert) poses a

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conflict and makes him unsuitable to represent the class.3 Because document discovery and the

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plaintiffs’ counsel’s declaration illuminate the issue sufficiently to allow the defendants to file a

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motion to disqualify class counsel, the court denies the motion.

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See Fifth Amendment Complaint — ECF No. 256. Record citations refer to material in the Electronic
Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents.
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The moving defendants are MoneyMutual, Selling Source, PartnerWeekly, Glenn McKay, Brian
Rauch, John Hashman, Douglas Tulley, Samuel Humphreys, and Anthony Irby (collectively, the
“MoneyMutual defendants”) and Montel Williams. (Motion — ECF No. 308 at 2.)
Motion — ECF No. 308 at 4-5; Supplemental Memorandum — ECF No. 294; Discovery Brief —
ECF No. 314.
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ORDER (No. 13-cv-01171-JSW (LB))

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STATEMENT

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On December 10, 2015, the moving defendants’ counsel attended a dinner in Las Vegas with

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an attorney named Tim Muir, who represents Scott Tucker and entities affiliated with Mr. Tucker.4

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The U.S. Attorney for the Southern District of New York charged Mr. Tucker (and Mr. Muir) with

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operating an unlawful Internet payday lending enterprise in violation of the Racketeer Influenced

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and Corrupt Organizations Act, 18 U.S.C. § 1962(c), and The Truth in Lending Act (“TILA”), 15

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U.S.C. § 1611, and the Federal Trade Commission (“FTC”) charged him civilly based on the same

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conduct with violations of the FTC Act, 15 U.S.C. § 45(a), TILA’s disclosure requirements

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(implemented in 12 C.F.R. § 1026), and the Electronic Fund Transfer Act, 15 U.S.C. § 1693(k)(1)
(implemented in 12 C.F.R. § 1005.10(e)(1)).5 Mr. Muir told the defendants’ counsel about a

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United States District Court
Northern District of California

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consulting arrangement with the plaintiffs’ class counsel, Jeffrey Wilens:

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During the course of the dinner, Mr. Muir informed me that Jeffrey Wilens, counsel for the
class in this action, had entered into a consulting agreement with Mr. Tucker or one of his
entities (the actual party involved was not identified by Mr. Muir). This occurred in the
context of a telephone call I had with Mr. Muir approximately a year to a year-and-a-half
prior to the dinner, during which Mr. Muir had spoken with me about the possibility of
entering into such an agreement with Mr. Wilens and said that Mr. Wilens had approached
him. According to Mr. Muir, the purpose of this agreement was to create an attorney-client
relationship between Mr. Wilens and Mr. Tucker’s payday lending operation that would
prevent Mr. Wilens from naming Mr. Tucker’s businesses as defendants in litigation.6

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The defendants’ counsel asked Mr. Wilens during a March 4, 2016 “meeting whether he ‘had a

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consulting or services agreement with any tribal lenders.’”7 He first responded, “no,” and then

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continued, “‘there was one under discussion’ with Scott Tucker’ but ‘it didn’t go forward.’

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Without further prompting, Mr. Wilens added, ‘there was nothing wrong with it because the

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decision already had been made not to go forward against any tribal lenders.’”8 “Mr. Wilens then

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continued, in apparent seriousness, ‘Why? Would you want to retain me?’ He then went on to say

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Putterman Decl. — ECF No. 308-1, ¶ 2.

United States v. Scott Tucker and Timothy Muir, No. 16cr0091 (S.D.N.Y.); Federal Trade Comm’n v.
AMG Servs. et al., No. 2:12-cv-00536 (S.D.N.Y. April 2, 2016). The court takes judicial notice of the
fact of these public-record documents (but not the factual allegations in them).
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Putterman Decl. — ECF No. 308-1, ¶ 2.

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Id. ¶ 2.

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Id. ¶ 3.

ORDER (No. 13-cv-01171-JSW (LB))

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‘if we were to do such a thing’ we would need to avoid the conflict with the class. [The

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defendants’ counsel] then responded that [their] clients were not looking to retain Mr. Wilens.”9
In a call on April 6, 2016, after the defendants filed this motion, Mr. Wilens told the

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defendants’ counsel that

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he had never spoken directly with either Tim Muir or Scott Tucker, but that he actually had
gone through two other attorneys. He suggested that [the moving defendants’ counsel]
contact these attorneys, whom Mr. Wilens claimed would corroborate the propriety of Mr.
Wilens’[s] conduct. One of the attorneys was Conly Schulte, Esq., a Colorado attorney.10

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Mr. Schulte represented several tribes and tribally owned entities in two cases involving online

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payday lending; Mr. Wilens represented the named plaintiff in one case, Colbert v. SFS Inc., No.
RG12657429 (Cal. Sup. Ct.) (filed in 2012).11 Mr. Schulte describes his dealings with Mr. Wilens:

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United States District Court
Northern District of California

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3. The claims by the named plaintiff against the tribal client I represented in the
Colbert case were court-ordered to arbitration, where they ultimately settled in May 2015.
In November 2015, I settled two other claims against my clients involving persons
represented by Mr. Wilens.

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4. Shortly thereafter, on November 13, 2015, I received an email from Mr. Wilens
asking if I “would be interested in having a phone conversation to follow up on some
discussions initially raised with [a lawyer that formerly represented other defendants in a
tribal lending case].” . . . [The email is attached.]

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5. I spoke with Mr. Wilens over the telephone later that month, and he told me about a
legal article he had found asserting that in certain situations it could be ethical for a party
to enter into a consulting agreement with an opposing attorney in order to create a conflict
of interest that would prevent the opposing attorney from bringing an action against that
party in the future.

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6. Shortly after the call, on November 30, 2015, Mr. Wilens forwarded to me the
article he had referred to during the telephone call. The article, written by two attorneys
with Arnold & Porter LLP, was titled “Ethical Limitations on Attempting to Prevent or
Restrict an Attorney from Bringing Future Claims as Part of a Settlement Agreement.” Mr.
Wilens forwarded the article as a PDF attachment that had been named, “Article on hiring
lawyers as consultant to create conflict on future cases.pdf.” . . . [The article is attached.]

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7. Mr. Wilens asked whether my clients would be interested in entering into a
consulting agreement with the Lakeshore Law Center and the Spencer Law firm. I
requested that Mr. Wilens provide draft agreement terms. . . . [The proposed consulting

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Id. ¶ 4.

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Snyder Decl. — ECF No. 294-1, ¶ 4.

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Schulte Decl. — ECF No. 294-3, ¶ 2.

ORDER (No. 13-cv-01171-JSW (LB))

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agreement is attached.] The terms proposed by Mr. Wilens were unacceptable, and no
agreement was reached.12

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The article by the Arnold and Porter lawyers discusses consulting agreements with plaintiffs’

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lawyers to foreclose future litigation from plaintiffs’ lawyers against clients.13 Mr. Wilens’s draft

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consulting agreement provides for a $250,000 nonrefundable retainer payable over 15 months,

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hourly fees, and this paragraph titled “Conflicts”:

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You [Mr. Wilens] acknowledge that accepting this Agreement and the payments hereunder
and representing the Company may limit your ability to represent other clients. You agree
not to represent any other client with any interest adverse to the Company during the term
of this Agreement. You further agree not to represent any other client with any interest
adverse to the Company in any matter with respect to which you obtained confidential
information of the Company that is related to the Company’s or the other client’s claims or
defenses in that matter. You acknowledge that, absent clear and convincing evidence to the
contrary, it will not be possible for you to represent an individual in an action against the
Company based on a payday loan that the Company made about the individual because the
Company will have provided you confidential information material to its past, present, and
future lending practices, which practices would be material to such an adverse
representation. You represent that you have not (a) advised anyone (other than the
individuals you represented in prior claims against the Company, and other than the
statements previously on your website before the Effective Date that were directed to the
general public) to sue the Company or (b) referred anyone whom you believed might have
a claim against the Company to any other attorney.

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United States District Court
Northern District of California

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Under no circumstances would this attorney-client relationship with Company be
deemed to render you ethically or legally unable to represent clients with claims
against other payday lenders or payday lending companies such as Selling Source and
MoneyMutual.14

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Reginald Steer and Danielle Ginty are outside counsel to David Johnson, a defendant who
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successfully moved to compel arbitration.15 According to Mr. Steer, on May 8, 2015, Ms. Ginty
spoke to Mr. Wilens about his proposals for settlement; “one of the proposals Mr. Wilens raised
was one that he said he ‘could not discuss’, but that [ Mr. Steer] would know what he meant. [Mr.

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Steer] did not know at the time what Mr. Wilens was referring to[, ] did not ask Mr. Wilens to
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clarify his proposal, and [] did not discuss it further with him.”16 The import of this is that Mr.

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Id. ¶¶ 3-7.

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Ex. B, ECF No. 294-3 at 29.

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Ex. C, ECF No. 294-3 at 43-48 (emphasis in the original).

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4/8/2015 Order — ECF No. 186; Steer Decl. — ECF No. 294-2, ¶ 1; Ginty Decl. — ECF No. 294-5,
¶ 1.

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Steer Decl. — ECF No. 294-2, ¶ 2.

ORDER (No. 13-cv-01171-JSW (LB))

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Wilens was raising the same proposal of a side consulting deal. Ms. Ginty describes her

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conversation with Mr. Wilens as follows: “When describing this proposal, Mr. Wilens stated that

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in another case, the defendants wanted to retain him after settlement. He stated that he researched

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the issue extensively and determined that this could not be done because the settlement could not

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include or imply any side agreements between him and the defendants. Mr. Wilens stated that,

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nonetheless, ‘attorneys can be hired by anyone at any time.’”17

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The moving defendants point to Mr. Wilens’s filing of serial arbitrations in an attempt to

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create leverage for settlement and incentives to enter into a consulting agreement with him to cut

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off his ability to file future arbitration claims against them.18 For example, after the district judge
granted the Rare Moon defendants’ motion to compel arbitration, Mr. Wilens filed arbitration

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United States District Court
Northern District of California

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cases against the Rare Moon defendants and others on behalf of some of the named plaintiffs and

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other class members from the class list.19 On September 8, 2015, the Rare Moon defendants

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resolved all of the arbitration cases that Mr. Wilens filed.20 In September or October 2015, Mr.

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Wilens called counsel for the Rare Moon defendants; counsel for defendants describes the

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conversation as follows:

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6. During this telephone conversation, Mr. Wilens stated that he would not be filing
arbitration cases against my clients for a period of time as he would be utilizing the
resources that were contacting potential claimants to pursue other matters. Further, Mr.
Wilens stated that if my clients wanted to avoid him filing future arbitration cases, which
he stated he intended to do at some future date, then either I or my clients should know
what to do. I told Mr. Wilens that I did not know what he was talking about and he told me
to talk to Reginald Steer, counsel for the Cane Bay Defendants in this lawsuit, and that Mr.
Steer would know to what Mr. Wilens was referring. I did not understand at the time what
Mr. Wilens was suggesting.

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7. My clients in the AAA [arbitration] cases have not entered into a consulting
agreement with Mr. Wilens.

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Ginty Decl. — ECF No. 294-5, ¶ 2.

Snyder Decl. — ECF No. 294-1, ¶ 5; Croker Decl. — ECF No. 294-4, ¶¶ 3, 6. The moving
defendants assert that Mr. Wilens is misusing documents that are designated “Highly Confidential” to
find clients to file arbitration claims against defendant Cash Yes. (Snyder Decl. — ECF No. 294-1,
¶ 5.) Mr. Wilens denies this, and the court addressed the issue in its discovery order at ECF No. 313,
finding that it could not conclude that Mr. Wilens violated the protective order.
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Croker Decl. — ECF No. 294-4, ¶ 3.

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Id. ¶ 4.

ORDER (No. 13-cv-01171-JSW (LB))

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8. On or about November 9, 2015, Mr. Wilens filed the first arbitration case with AAA
that he had filed since my clients resolved the previously filed AAA cases.

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9. Since November 2015 to present, Mr. Wilens has filed over 100 cases with AAA
against my clients [the Rare Moon defendants] on behalf of claimants.21

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Mr. Wilens filed a declaration generally explaining his actions. For example, in the Colbert

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case, he describes how the case moved to arbitration and that the ultimate result became

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predictable: “there would be no class relief but Colbert would prevail on her individual claims;”

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the parties thus settled this case and the Clark case (also ordered to arbitration) case in May

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2015.22 He was retained by others, and he settled their claims; the result was that by the end of

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November 2015, he settled all of his clients’ claims against the defendants SFS and Mr. Tucker.23

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He confirms his conversation with Mr. Schulte, counsel for SFS, and his emailing of the Arnold &

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Northern District of California

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Porter article and the consulting-agreement exemplar, which he emailed at Mr. Schulte’s request.24

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He declares that the discussions never proceeded beyond that point, and there never was a

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consulting agreement.25 He then states the following:
10. Although Defendants imply that there may have been some kind of “deal” in
connection with the October 2013 amendment, that is completely untrue. That decision had
absolutely nothing to do with any “deal” Wilens had with Tucker or any other tribal lender,
because there was no deal, consummated or even contemplated.

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11. Putterman’s declaration (Doc. 263-1) states that Timothy Muir told him
(apparently over an excessive number of cocktails) that “Jeffrey Wilens, counsel for the
class in this action, had entered into a consulting agreement with Mr. Tucker or one of his
entities (the actual party involved was not identified by Mr. Muir).” That statement is
completely false. No such consulting agreement had been entered into as of December
2015 (or ever).

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12. In addition, in that declaration Putterman also claims Muir told him that 12-18
months before December 2015 (i.e., June 2014 to December 2014), Wilens had approached
him (Muir) and proposed a consulting agreement so as to create an “attorney-client
relationship between Mr. Wilens and Mr. Tucker’s payday lending operation that would
prevent Mr. Wilens from naming Mr. Tucker’s businesses as defendants in litigation.”
Again, this is lie or Putterman has misquoted Muir.

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Id. ¶¶ 5-9.

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Wilens Decl. — ECF No. 297-1, ¶¶ 3-6.

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Id. ¶¶ 7-8.

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Id. ¶ 9.

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Id. ¶¶ 9-10.

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ORDER (No. 13-cv-01171-JSW (LB))

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13. To the contrary, the Colbert class action was still being prosecuted either in court
or in arbitration against SFS well into March 2015. Moreover, I have had no
communications with Muir regarding that topic (or anything else to the best of my
recollection).26

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He confirms that he spoke with Ms. Ginty but asserts that he “pressed [her] to consider a

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class[-]action settlement and some specific numbers were discussed. [He] did not propose any

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consulting agreement but to the contrary told Ginty very clearly that [he] would not discuss any

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unethical proposals with her and gave her one such example of an unethical proposal (which is the

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one cited by Ginty in her declaration).”27
He confirms that he spoke with Mr. Croker on November 9, 2015, pressing him “to consider a

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class[-]action settlement and propos[ing] some numbers for classwide payment.”28 He has no
record of a phone call in September or October about Mr. Croker’s “‘knowing what to do.’”29 He

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United States District Court
Northern District of California

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did email Mr. Croker on November 5, 2015, saying that he was
“gearing up to file new arbitration cases against Rare Moon” and proposed a process by
which the statute of limitations would be tolled so that Rare Moon could be given
advanced notice of the proposed filings and a chance to verify the loan was funded. There
were a number of phone calls and emails in September and October 2015 but they
concerned various arbitration claims that were being finalized for settlement, so to the
extent Mr. Croker refers to a time frame between when all pending arbitration cases were
resolved and before new cases were filed, that would be November 2015 not September or
October 2015.30

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His declaration concludes:
16. Mr. Putterman claims the Ginty, Steer and Croker declarations prove that I was
approaching counsel for payday lenders who loaned money to the Gilbert class members
(i.e., Cash Yes and Rare Moon lenders) in order to “solicit agreements which would
prohibit him from representing clients in arbitrations directly related to the claims he is
asserting in this action on their behalf.” That never happened. At no time did I propose to
any of those counsel that I would abandon class members’ arbitration claims in exchange
for some sort of agreement whereby I would be hired by those payday lenders. With
respect to the Gilbert class members’ claims against those payday lenders, the only offers
which have been made, involve either a class action settlement or settlement of individual
claimants (depending on the status of the particular cases).

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Id. ¶¶ 10-13 (emphasis in original).

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Id. ¶ 14 (emphasis in original).

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Id. ¶ 15.

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Id.

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Id.

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ORDER (No. 13-cv-01171-JSW (LB))

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17. Defendants claim that according to my own words, I have been “going around
offering to sell out hundreds if not thousands of” class members or clients, “by offering to
enter into agreements for large sums of money to not represent them in arbitrations. . . .”
That is a flat out lie by Mr. Putterman as evident from the complete absence of any
evidence. Much to the contrary, I have hammered the defendants with many arbitration
clams, leading them perhaps to discover the arbitration clauses were a double-edged sword.
Mr. Putterman is also well aware I have achieved important victories in this case and
exposed his clients in depositions where they were forced to admit under oath they
promoted unlicensed and illegal lenders while professing ignorance at the same time. This
motion and Mr. Putterman’s allegations are nothing more than an attempt to derail a freight
train.31

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ANALYSIS
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When they filed their motion, the moving defendants knew only of the possible arrangement
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with Mr. Tucker and sought discovery — documents and a deposition — about it.32 Then, through

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a meet-and-confer process after they filed their motion, they learned about Mr. Schulte and
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United States District Court
Northern District of California

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obtained Mr. Wilens’s correspondence with him, including a draft consulting agreement.33 Their
argument is that if Mr. Wilens entered into a forbearance agreement with Mr. Tucker, then “it

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creates a clear conflict of interest between Mr. Wilens and the class[] to the extent that he may
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have disregarded claims held by potential class members in favor of his own pecuniary
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interests.”34 The defendants assert that a conflict calls into question Mr. Wilens’s adequacy as
class counsel and that “even contemplating such an agreement might call into question his
adequacy as class counsel.”35 In particular, they argue that by proposing to enter into an agreement
with Mr. Tucker, he knew that Mr. Tucker and his companies “might possibly be invested in

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lenders alleged to be part of the RICO conspiracy at issue here, or material witnesses to the claims
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and defenses (for instance when MoneyMutual defended the allegations that they attempted to
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‘conceal’ their involvement with Mr. Tucker).”36 “Mr. Wilens knew he potentially was agreeing to

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Id. ¶¶ 16-17 (emphasis in original).

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Motion, ECF No. 308 at 4.

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Supplemental Memorandum — ECF No. 294 at 2, 6; Snyder Decl. — ECF No. 294-1, ¶¶ 2-4;
Schulte Decl. – ECF No. 294-3, ¶ 7, Ex. C.
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Id. at 3-4.

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Id. at 4.

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Joint Letter Brief — ECF No. 314 at 2.

ORDER (No. 13-cv-01171-JSW (LB))

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make deals with persons that very well could be involved in the alleged illegal payday loans at

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issue, or material witnesses thereto.”37
Rule 26(b)(1) of the Federal Rules of Civil Procedure describes the basic scope of discovery

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— i.e., what information parties can rightly demand from one another:

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Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.

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Fed. R. Civ. P. 26(b).38

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If a party seeks relevant information that is proportional to the needs of the case, that party

United States District Court
Northern District of California

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may depose “any person” under Rule 30(a)(1), and there is no express prohibition against

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deposing an attorney of record in a case. See Graff v. Hunt & Henriques, No. C 08–0908 JF
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(PVT), 2008 WL 2854517, at *1 (N.D. Cal. July 23, 2008). Still, “[t]he Supreme Court . . .

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alluded to a presumption that trial counsel should not be forced to testify because doing so
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compromises the standards of the legal profession.” Nocal, Inc. v. Sabercat Ventures, Inc., No.

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C 04–0240 PJH (JL), 2004 WL 3174427 (N.D. Cal., Nov. 15, 2004) (citing Hickman v.
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Taylor, 329 U.S. 495, 513 (1947)); accord Mustang Mktg., Inc. v. Chevron Prods. Co., No. SA
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CV 02–485 DOC (MLGx), 2006 WL 5105559, at *3 (C.D. Cal. Feb. 28, 2006). For this
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reason, attorney depositions even for fact discovery generally are allowed only when the
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discovery cannot be obtained from another place. Graff, 2008 WL 2854517, at *1 (citing
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Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986)).
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The Shelton court explained that attorney depositions should be permitted only where the
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party seeking the deposition shows that 1) no other means exist to obtain the information, 2)
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Id.

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The main text sets out the current version of Rule 26(b), which was amended effective December 1,
2015. “[I]t is well established that a court generally applies the law in effect at the time of its decision,
and that if the law changes, . . . the . . . court applies the new rule.” Lambert v. Blodgett, 393 F.3d 943,
973 n. 21 (9th Cir. 2004) (citing Thorpe v. Durham Hous. Auth., 393 U.S. 268, 281 (1969)).
ORDER (No. 13-cv-01171-JSW (LB))

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the information sought is relevant and nonprivileged, and 3) the information is crucial to the

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preparation of the case. 805 F.2d at 1327. District courts in this district generally recognize

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Shelton as the leading case on attorney depositions on matters relating to the pending case.

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See, e.g., S.E.C. v. Jasper, No. C07-06122 JW (HRL), 2009 WL 1457755, at *3 (N.D. Cal.

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May 26, 2009); Fausto v. Credigy Servs. Corp., No. C 07–05658, 2008 WL 4793467, at *1 n.2

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(N.D. Cal. Nov. 3, 2008); Graff, 2008 WL 2854517 at *1; see also Nocal, 2004 WL 3174427;

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accord ATS Prods. v. Champion Fiberglass, Inc., No. 13-cv-02403-SI (DMR), 2015 U.S. Dist.

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LEXIS 74015, at *8 (N.D. Cal. June 8, 2015). The parties agree; both apply Shelton in their

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analysis.39
That said, Shelton is meant to protect against deposing an attorney regarding a pending

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United States District Court
Northern District of California

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case in part because that might lead to disclosure of litigation strategy. ATS, 2015 U.S. Dist.

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LEXIS 74015, at *13 (citing Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 729-30 (8th

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Cir. 2002)). It was not intended to block discovery of “relevant information uniquely known

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by [the plaintiff’s] attorneys about prior terminated litigation, the substance of which is central

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to the pending case.” Pamida, 281 F.3d at 731; see also In re Subpoena Issued to Dennis

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Friedman, 350 F.3d 65, 72 (2nd Cir. 2003) (applying a more flexible standard and considering

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various factors, including the need to depose the lawyer, the lawyer’s connection to the

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discovery, the risk of encountering privilege and work product, and the extent of discovery

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already conducted).40

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Joint Discovery Letter — ECF No. 314 at 3; Opposition — ECF No. 297 at 4; Reply — ECF No.
307 at 5-8.

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In Pamida, a patentholder sued Pamida for selling shoes that infringed her patent; Pamida
rejected the patentholder’s early settlement offer and instead engaged in costly litigation that
ultimately resulted in a settlement. 281 F.3d at 728. Before the case settled, Pamida sued its
manufacturer Dynasty for indemnification. Id. Pamida’s lawyers were the same in both
lawsuits. Id. at 728-29. The court allowed discovery into Pamida’s notice to Dynasty and the
reasonableness of fees; the court held that the issue should be evaluated under Rule 26 and that
Pamida waived any claims of attorney-client privilege or work product by filing its lawsuit. Id.
at 730-31. Similarly, the ATS court applied Rule 26 when considering whether to allow the
deposition of a party’s attorney who had percipient information from a prior concluded
settlement negotiation that was relevant to the pending trade-secrets case. 2015 U.S. Dist.
LEXIS 74015, at *18-*19. The court disallowed the deposition based on burden and the
availability of information from other sources but said that it would permit the deposition if
ATS called its attorney as a trial witness. Id. at *20-*21.
ORDER (No. 13-cv-01171-JSW (LB))

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The issue is whether the moving defendants ought to get discovery from Mr. Wilens

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(documents and a deposition) about his negotiations in an unrelated case that implicate

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whether he violated California ethical rules and thus might be disqualified from representing

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the class here. Mr. Wilens’s earlier cases involved different defendants than the defendants in

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this case. And more to the point, Mr. Wilens — in sworn declaration — denied making any

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deal. He says that Mr. Muir’s statements are false. He voluntarily disclosed all information to

7

the defendants and points out that they are free to raise their arguments about conflict to the

8

assigned district judge.41 He asserts that a deposition serves no purpose other than to harass.42

9

The court denies the motion. The moving parties have not established that they have no

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other means to obtain documents; indeed, their motion shows they have done so. Moreover,

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United States District Court
Northern District of California

2

Mr. Wilens generally cooperated with the defendants and tried to reduce their concerns by

12

providing them with information. The defendants’ arguments now mainly are that they don’t

13

believe Mr. Wilens and are entitled to depose him in aid of a motion to disqualify him, not

14

only about the Tucker arrangement, but also about any other similar offers or arrangements

15

that Mr. Wilens proposed in this or other cases or situations.43 Whatever purpose a deposition

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might serve, Mr. Wilens’s declaration covers that territory. He confirmed at the hearing that he

17

had not entered into or proposed similar arrangements. Much more practically, the moving

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defendants have the information that they need to bring a motion to disqualify Mr. Wilens as

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class counsel. To the extent that they disagree with his characterization of their interaction,

20

they are able to offer their own declarations to rebut his.
CONCLUSION

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22

The court denies the motion. This disposes of ECF Nos. 294, 308, and 314.

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IT IS SO ORDERED.

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Dated: June 9, 2016

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______________________________________
LAUREL BEELER
United States Magistrate Judge

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41

Opposition — ECF No. 297 at 10.

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42

Id.

28

43

Joint Letter — ECF No. 314 at 2.

ORDER (No. 13-cv-01171-JSW (LB))

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