Winter 2015

CMCP Diversity Matters
Winter 2015 Newsletter
MINORITY
Winter 2015
1

CMCP Diversity Matters
2015 eNewsletter Committee Members
Tambry L. Bradford
(Co-Chair)
Special Counsel
Pepper Hamilton LLP
Cassandra Mougin
(Co-Chair)
Shareholder
Pettit Kohn Ingrassia & Lutz, PC
Michael Chung
Of Counsel
Willenken Wilson Loh &
Delgado LLP
Karen A. Henry
Counsel
Davis Wright Tremaine LLP
Noah Perez-Silverman
Associate
Caldwell Leslie & Proctor, PC
Kelly Perigoe
Associate
Caldwell Leslie & Proctor, PC
David Shimkin
Member
Cozen O’Connor
Jonathan Turner
Partner
Mitchell Silberberg & Knupp LLP
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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
page 14
page 15
page 17
Meet Your New CMCP Board Members –
Attorney Spotlight Series:
Sharon Tomkins, Vice President & General Counsel,
Southern California Gas Company
California Supreme Court Raises the Bar for
Recovery of Costs by Prevailing Defendants in
FEHA Cases
Business Development Series:
When it Comes to Business Development,
Everyone is a Solo
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
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CMCP Diversity Matters
ATTORNEY
SPOTLIGHT ON
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.
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Winter 2015 Newsletter
Employer Alert re California Fair Pay Act
By: Jonathan M. Turner, Partner, Mitchell Silberberg & Knupp LLP
If 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.
1.
SB 358, Section 1(c).
2.
SB 358, Section 1(d).
Continued on next page…
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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.
Defenses to claims for gender-based wage
differentials
Under the current law, an employer can defend against
gender-based claims of wage disparity by proving that
any such disparity is based on one of the following
criteria: (1) a seniority system, (2) a merit system, (3) a
system which measures earnings by quantity or quality
of production, or (4) a differential based on any bona
fide factor other than sex. While the CFPA does not
abolish these defenses, it has made it more difficult
for employers to prevail on them. The CFPA clarifies
that the employer has the burden to demonstrate that
one or more of these criteria accounts for the disparity.
With respect to the fourth criteria, the employer must
demonstrate that: (1) the factor other than sex is not
based on or derived from a sex-based differential
in compensation; (2) the factor is job-related with
respect to the position in question; and (3) the factor is
consistent with a “business necessity.”
In order to demonstrate “business necessity,” the
employer now must prove that the wage disparity
achieves “an overriding legitimate business purpose
such that the factor relied upon effectively fulfills the
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
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
his or her rights under this section.” Although the
CFPA prohibits employers from retaliating against
employees who request that their employer provide
them with wage information regarding co-workers,
the CFPA does not obligate the employer to provide
employees with this information.
Remedies for wage disparity violations under CFPA
The CFPA makes no change to what employees can
recover for gender-based wage disparity claims.
Employees who prevail on such claims are entitled to
the amount of the wage differential that was withheld,
plus an equal amount as liquidated damages, and
prejudgment interest. The recovery period is two
years from the filing of an action, except that an action
arising out a willful violation extends the recovery
period to three years.
Attorney’s fees are also recoverable by plaintiffs who
prevail on claims under the CFPA.
For an analysis of the predicted effect of the CFPA
on legislation, check out the next issue of the
CMCP Newsletter.
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.
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CMCP Diversity Matters

Winter 2015 Newsletter
8

MEET YOUR NEW CMCP BOARD MEMBERS
CMCP Diversity Matters
ATTORNEY
SPOTLIGHT ON
SHARON TOMKINS – Vice President and General Counsel,
Southern California Gas Company
By: Noah Pérez-Silverman, Associate, Caldwell Leslie & Proctor, PC
Sharon 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
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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…
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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
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.
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.
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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
In 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.
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.
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
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.
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.
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.
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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.
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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
Differentiate
2
3
4
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.
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CMCP Diversity Matters
AB1141 Amends
California Code of
Civil Procedure
By: Jennifer N. Lutz, Shareholder,
Pettit Kohn Ingrassia & Lutz PC
AB 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
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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
As 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…
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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.
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.
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 http://www.supremecourt.gov/orders/courtorders/
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.
19

Winter 2015 Newsletter
Diversity Calendar
January 14, 2016
5:30pm - 8:00pm
ACBA 2016 Installation and
Distinguished Service Awards
Alameda County Bar Association
Rotunda Building - Oakland
Read more
January 21, 2016
6:00pm - 7:30pm
Snaps, Velcro or Zippers? A
Conversation About Becoming a Judge,
Good Judging, and Justice
Asian Pacific American Bar Association
Los Angeles
Asian Americans Advancing Justice - LA
Read more
January 28, 2016
5:30pm
38th Annual Dinner & Board Installation
Filipino American Lawyers of San Diego
Westin - San Diego
Read more
February 5, 2016
2:00pm - 4:00pm
ABA Midyear Meeting GOOD GUYS
Program
National Conference of Women's Bar
Associations
Manchester Grand Hyatt, Seaport
Ballroom G, 2nd Level - San Diego
Read more
February 17, 2016
Starts 5:30pm
Sixth Annual Litigation Awards Dinner
Beverly Hills Bar Association
Montage Beverly Hills - Beverly Hills
Read more
February 6, 2016
5:00pm - 9:00pm
Save the Date! 56th Annual Installation
of Officers & Awards Gala
Mexican American Bar Association
TBD
Read more
February 18, 2016
6:00pm - 8:00pm
SAVE THE DATE: Annual In-House Mixer
Asian American Bar Association of the
Greater Bay Area
TBD
Read more
February 9, 2016
6:00pm - 10:00pm
Barristers Night Out: Golden State
Warriors v Houston Rockets
Alameda County Bar Association
Oracle Arena - Oakland
Read more
February 18, 2016
5:30pm - 7:30pm
SAVE THE DATE: OCBA Law Student
Open House Section Specialty Day
Orange County Bar Association
OCBA - Newport Beach
Read more
March 5, 2016
TBD
SAVE THE DATE: OCHBA 38th Annual
Scholarship Fundraiser & Installation
Dinner
Hispanic Bar Association Orange County
TBD
Read more
March 18, 2016
TBD
SAVE THE DATE - AABA’S Annual
Installation Dinner
Asian American Bar Association of the
Greater Bay Area
Hyatt Regency San Francisco - SF
Read more
March 18, 2016
TBD
16th Annual Northern California
Judicial Reception
California Women Lawyers
TBD
Read more
20

CMCP Diversity Matters
Winter 2015 Newsletter
CMCP Diversity Matters
MINORITY
Winter 2015
© Copyright 2015
California Minority Counsel Program
465 California Street, Suite 635
San Francisco, CA 94104
Tel: 415-782-8990
Email: newsletter@cmcp.org
Web: http://www.cmcp.org
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