OA581: The Activision-Blizzard Settlement Is Happening and It Sucks

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Open Your Arguments. This is episode 581. I'm Thomas. That's Andrew. How are you doing?

0:01:24 Andrew: I'm fantastic, Thomas. How are you?

0:01:26 Thomas: Doing great. Of course, I'm not the lawyer. You are the lawyer, I feel like I should say that from time to time for new listeners, but I don't know. I feel they would probably figure it out within, I don′t know, couple seconds of listening to the show.

0:01:32 Andrew: Well, I like the idea that they might not be able to figure it out.

0:01:42 Thomas: That would be pretty cruel if, like, I was the lawyer and you weren't and I just made you do these law deep dives while I poked fun at the law. That would be awesome, actually.

0:01:50 Andrew: All right, new idea for a show. We'll talk to you after the record.

0:01:56 Thomas: All right. Well, reminder that we have a live Q&A on YouTube this Wednesday, March 30th at 4 p.m. Pacific, 7 Eastern. Those are always so much fun. Look out for the post. We will share it out, of course, when we go live. And also, if you subscribe to the YouTube channel, it'll just give you a notification when we do that. That also helps, too. And go hit up that question thread on Patreon. Patrons are the only ones who get to ask and vote on questions, but everybody can come join us on Wednesday. Uh It's so much fun. We'll see you there. I think that's our only announcement. Anything else before we get going. Yeah, we're all very much squares, there's no or in that, it's be that, come be a square with all of us together. So,

0:02:28 Andrew: Yeah, be there and be square.

0:02:38 Clip: Arrest a husband and wife for the same crime. Yeah, I don't think that that's true, Dad. Not that we're still...

0:02:48 Thomas: The document case that never ends. Uh, mostly because John Eastman is really slow rolling, gumming up the works of producing in these documents. What's the update?

0:02:57 Andrew: Well, would it surprise you to learn that John Eastman wants the case to go faster? That should, because you, only in one very, very particular area. So, uh, full update, uh, we are still waiting on, uh, the in-camera review of the 111 privileged documents that were the subject of the hearing, and with which, uh, the court is going page by page. And I anticipate that that, that obsolete by the time you're hearing this, the time frame in which I expect some kind of ruling. I think the delay is the court writing its opinion. I could be wrong. Again, as I mentioned last episode, courts are super busy. So this would be at the top of my inbox, but we don't know. So, number one, still no ruling on those documents. As soon as we have that, we will break in, let you know.

Number two, the court, somewhat surprisingly, I guess this should be a huge surprise, granted John Eastman's request to slow everything down that we talked about a week ago. On March 16th, the court granted his request to reduce his production of documents to a thousand pages a day from 1500. That means he will complete that review by April 21st, which is just, uh, about four weeks from, from today.

0:03:01 Thomas: Yes, it would.

0:03:24 Thomas: In full disclosure, was this a bit of an Andrew was wrong? I thought you'd predicted that the judge would have no patience for this nonsense.

0:04:11 Andrew: Um, yeah, I I, I did, I mean, I did, let me own up to that, um, the court is not showing the kind of frustration that I thought would be consistent with, uh, what happened at that hearing. Um, there may be a bunch of reasons for, one that right of the reasons I'm not a judge is if I'm unhappy at a party, uh, you will know it. And, and, look, there are lots of judges who were like that now

0:04:40 Thomas: Oh, you meant a party in a loss. I thought he meant like at a party.

0:04:43 Andrew: And also, yeah, if I've, I'm at a party and the music sucks like I'm gonna you know, you

0:04:46 Thomas: I've always seen you having fun at parties. I've never seen you be unhappy, but I guess maybe I will know it if you are. Yeah.

0:04:52 Andrew: Will know if if I am a judge and a party before me has annoyed me, that party will will know it. And lots of judges are like that. But lots of Judges are, have a better temperament than that. Yeah. And should be. So I will say I thought it was particularly galling. And I hope the court has been made aware that literally the day after the court granting his request, Johnny Eastman announced that, you know, he was going off to participate in some right wing dumb, you knows, stop the steel festival thing. Thing. And so, contrary to his like, I'm just a dedicated law professor and I have so much work that I have to do for my students. Now he's off grifting with anybody dumb enough to believe that, you know, Joe Biden stole the 2020 election. So I don't know. If I were a judge, I would have no time for these shenanigans.

0:04:57 Thomas: Even patient yeah yeah right

0:05:38 Andrew: This judge had time for those shenanigans. That's an Andrew-was-wrong. The big news is that John Eastman has made a request for early discovery to move up the schedule and let him get certain documents early. Why has he done that? Well, this this is in response to Chapman University's argument that he has waived his privilege over any documents that are on the Chapman email servers by violating university policy, right? So, uh, the argument is, okay, um, if you think that's the case, court, if you are entertaining the Chapman waiver argument, as he calls it, uh, then you ought to give me the opportunity to take some discovery right now, uh, to prove that I didn't really violate that policy, or that the, uh, policy doesn't exist. And And, in support of that, he cites two cases. He says, he, Rule 26F, allows for early discovery by order of the court.

And then he cites two separate California cases and then says, good cause exists here to permit early discovery. If this court is at all inclined to consider the congressional defendant's Chapman waiver argument, thorough factual development is necessary. Finding such a waiver would result in the totality of the Chapman materials being disclosed, would cause harm to a great many clients who had no idea that corresponding with a .edu email address meant their privilege was waived.

0:06:05 Thomas: Right

0:06:56 Andrew: Sidebar, of all of the arguments that John Eastman has raised, this is probably his best one, right? The, hey, look, you have innocent third parties here who, you not have the surname Trump, and let's have some sympathy for them. The factual underpinnings of that waiver argument have been presented to the court through declarations and representation of counsel, which is not a sufficient factual basis, and plaintiff asserts upon information and belief that Chapman University is in possession of evidence, which would demonstrate the falsity of its factual assertions to this court, early discovery will ensure that this court has the evidence necessary to decide the issue. OK, so what does he want? He wants 25 requests for admission, 10 interrogatories, 20 requests for production of documents, and quote, a reasonable number of depositions will be sufficient, end of quote.

0:07:45 Andrew: I need to say that this is basically half of what you would ordinarily get in discovery, a little more than that, right? So this is not limited discovery, right. This is a pretty extensive request to ask wide-ranging questions, to oppose a number of Chapman University officials or even third parties, right, like former officials. And, um, should not be viewed as a minor request. It's not to say it will or won't be granted, but, um, Eastman filed this on March 17th, March 18th, Chapman University replied. This reply is really well lawyered. Okay, in its reply, uh, Chapman University says Eastman has not established a sufficient basis or need to engage in early discovery.

0:08:37 Andrew: There are other ways the court can develop the issue of potential waiver. And he has not establish that the need for the proposed discovery outweighs the prejudice to Chapman. And the first thing it begins with, and I would encourage, we'll link both of these, all three of these because there's a reply brief that Eastman files. We'll link all three in the show notes.

This is, when I say good lawyering, remember that I said Eastman cited the proposition that said Rule 26 of the Federal Rules of Civil Procedure, Rule 26F, allows you to seek early discovery if there's good cause. And then he cites to two different cases. One of the things a good lawyer does is downloads every case and checks them against every proposition for which they are asserted in an opponent's filing, right? Even when it seems pretty straightforward, forward. And here you would find, as Chapman University points out, both cases cited by Eastman arise in the unique context of copyright infringement actions, where the plaintiff was seeking early leave to issue a third-party subpoena to ascertain the identity of the alleged infringer in order to proceed with its case. In Malibu Media, the plaintiffs' motion was unopposed.

The plaintiff asserted that the third-party subpoena was the only way to identify the account holder associated with the IP address of the alleged infringer, right? So that is, I own a copyright. There's a website that is being hosted. I don't know by whom. That's why it is versus Doe, a right, pseudonym. And I asked the court, hey, under Rule 26F, let me issue a subpoena so I can figure out who it is and then amend the caption, name the real party, and bring them in.

0:09:20 Thomas: Right

0:10:14 Andrew: And the court summarized Ninth Circuit precedent as providing good cause exists where the need for expedited discovery in consideration of the administration of justice outweighs the prejudice to the responding party. So that's half of the cases that John Eastman has cited in his brief. What about the other half in AF Holdings versus Doe? The court granted a request for early discovery in the same context, using the same balancing test there. In balancing the need for discovery in consideration of the administration of justice, the court noted that plaintiff could not proceed with its case without the requested information and there was a compelling need for early discovery because the information might not be available later, right? Delete, cover up your tracks, that sort of thing. Finally, the court noted that it would not seem to be excessively burdensome for the identified ISP to provide the information sought here.

0:11:02 Andrew: Here, Eastman has not established the compelling need to conduct early discovery. On the issue of his authorization to represent the former president, Eastman has provided evidence through his declaration and Chapman's position has been presented to the court. With respect to the 2020 election, the court already has the public statement of Chapman president on December 10th, 2020, in direct reference to Eastman's representation of the former president that, quote, acting privately, Chapman faculty and staff are not free to use Chapman University's email address, physical address, or telephone number in connection with the support of a political candidate. The court also has a declaration of Chapman's general counsel. And then with respect to the 2000 election, Eastman states only that he was invited to testify before the Florida legislature, formerly retained by that legislature and participated as an attorney in election related litigation.

0:11:54 Andrew: Eastman States that with the approval of the school's then dean, Parham Williams, he used Chapman email system and Chapman law students to assist with the research for my testimony before the Florida legislature and my ultimate retention by the Florida legislator for the drafting of legislation. So Chapman's argument here is this is not being retained by a candidate. We heard at oral arguments, John Eastman going, look, I did this work, quote, in support of George W. Bush back in 2000, and you let me do it. And And now you won't let me do the same work in support of Donald Trump. And Chapman's position is right, because there's a difference between you doing legitimate law school work in the public interest, appearing before a state legislature with the state legislature being your client and representing a presidential candidate.

0:12:46 Andrew: In particular, their tax implications that are in connection with that. And we're not judging the political nature of your work. The right? Fact that your testimony to the Florida state legislature could have helped or hurt George W. Bush. We don't care. We just want to make sure that we don't run afoul of our policy, which is put in place to make sure that university resources are not directed to a political campaign in violation of 501C3. So Chapman continues, none of this matters to the issue before the court. Eastman has never asserted he represented candidate Bush or his campaign or he asked for or was granted authorization to do so. In his carefully worded declaration, Eastman says that the dean and the university approved only of his efforts to advise the Florida legislature on election related matters. That is not remotely similar to what Eastman did in late 2020 and early 2021 when he represented a presidential candidate in a campaign.

0:13:38 Andrew: And then the university says, require information in addition to what it already has, Chapman can submit declarations from Matthew Parlow, the dean of Chapman's law school during the period covered by the select committee subpoena, as well as the university's president in 2020 and former Dean Williams confirming that they never authorized Eastman to use Chapman resources or represent any candidate for elected office or their campaign. OK, so strong response. How does Eastman reply to that? Eastman, I think, again, this is some of his best lawyering. Right. This is not a high bar. He does not respond and indeed mangles the legal argument. So. So, again, not a high bar. He says, you know, the rule 26 standard is not compelling need, but good cause that that's misunderstands the argument that Chapman was making.

0:14:27 Andrew: Chapman says, in order to determine whether there is good cause, you balance the compelling need of the party to the prejudice on the other side. Right. So that effort to sort of clarify the law falls flat. The argument of we've only ever granted this in California in cases where it's necessary to discover the identity of the party before proceeding. No response to that. It instead, however, he says this, the fact that Chapman has claimed plaintiff's use of its email system was unauthorized does not moot the need for discovery any more than plaintiff claim that such use was authorized would moot the issue. Plaintiff is not arguing failure to state a claim, plaintiff has arguing that discovery will show that Chapman's claims are false or at least call them into question. Plaintiff as controverted Chapman's claims that his representation of president Trump was unauthorized in a declaration to the court. And then he says, claims from plaintiff and Chapman conflict on a material point, whether plaintiff's representation of then president Trump was unauthorised.

0:14:37 Thomas: Yeah

0:15:28 Andrew: Limited discovery is needed to resolve this dispute of fact to the extent that this court's ruling on privilege depends on this issue. Plaintiff asserts that Chapman is in possession of ample evidence demonstrating the truth of plaintiff claim. On information and belief, members of the Chapman faculty and administration openly used their school email addresses and other university resources in support of candidates for the Orange County City Council candidates forthe United States House and Senate, presidential candidates, various partisan organizations and other political causes. In certain instances, again, on information and belief, Chapman facility and emails were used to solicit students to volunteer on various political campaigns. Um, that's a good argument, right?

0:16:11 Thomas: So this is the thing I want to, make sure I'm understanding, this is the things that he's trying to get the early discovery on. He's saying, so Eastman is saying regarding the the whole school email thingamajig, um, if we do some discovery on like other Chapman University documents, we'll find that like lots of people do the same thing I did, so it's okay that I did it. Is that kind of weird?

0:16:34 Andrew: That, that, that evidence will show one of two things either one, that contrary to its public assertions right now, that the university did in fact authorize me to represent President Trump, and that, I, therefore justifiably relied upon that authorization, right.

0:16:34 Thomas: Ah.

0:16:47 Thomas: Question. Why? Wouldn't he have documents that, showed that that's,

0:16:52 Andrew: Um, that, that would be a really, really good argument to the contrary, Because, um, one of the arguments that, that he makes is, uh, that. Dean, then Dean Matthew Parlow, um, approved, right, of his request, here's how he puts it. This is footnote one. Chapman totally ignores plaintiff's claim that his representation of Donald Trump was undertaken in consultation with then Dean Matthew Parlow. So as you point out, if that were correct, you might expect that Chapman would have an email about, it. Would have some kind of paper draft. I went, you know, if I were working for someone else and I went to my boss and said, hey, want permission to represent party X, idea that I would go to my boss and say, I want permission represent Donald Trump is pretty laughable, but whatever, right. And they give it to me, I'm going to write back an email that says, thank you, this email is to confirm that you have approved, of my request to represent Donald Trump. Yeah.

0:17:00 Thomas: Yeah.

0:17:48 Andrew: I,

0:17:48 Thomas: That's, and, the other thing is, is if he doesn't have, so my thought process was like, if he does not have an email saying, yeah, sure, whatever, which you would think he could just produce, then what are they going to have that he does NOT have? So it is like the logic being, well, maybe they told him by phone or something that it was okay, but then what do they going have? A document where two of them email each other and be like, I just told Eastman by phone that it is okay. What are they gonna have? I do not get, it.

0:18:12 Andrew: I, think that that's the idea that you would find in other communications something to that effect. I will say that it is weird that this argument shows up in footnote one that says Chapman ignores plaintiff's claim that his representation of Donald Trump was undertaken in consultation with then Dean Matthew Parlow, but if you look through the original motion, that allegation does not appear as an affirmative allegation anywhere in the motion, right? So, you know, there are five, there are seven numbered paragraphs, I read most of them to you, if you control-F for Dean Matthew Parlow or any of those combinations, none of those words show up at all. So raising it, you know, sandbagging and raising that argument in a footnote at the end, is an illustration of, I think, the weakness of Chapman's position.

But, sorry, of Eastman's position. But, that's kind of category one, direct, right? Approval. The second category that, again, I think is a strong argument here, is the argument that says what I'm really going to find are lots and lots of communications in which the school tells people it's OK to represent political candidates, to solicit for political candidates and specific political causes, and to use your school email address in doing so. And that pattern of conduct supersedes kind of the written boilerplate language that says you have no expectation of privacy. And if the question is, right, what is that expectation? I justifiably relied upon the administration's longstanding pattern and practice.

0:19:05 Thomas: Of Chapman's position?

0:19:57 Andrew: And again, this is the argument, you know, most favorable to Eastman here, I'm giving him the uber benefit of the doubt here. But it seems to me that this is the way the court would go about it, right, is to say, yeah, I am not just going to take the university's word, right, and declarations from its president, because Eastman has argued that those statements are self serving and after the fact, and that there is, in fact, specific evidence that would show that in other other cases that, you know, the internet kind of looked at that with a wink and a not, right, that this is the equivalent of jaywalking on the Chapman University campus.

0:20:30 Thomas: Right. Right.

0:20:30 Andrew: Right, it's on this, it's on the books, but like, you know, no one has ever been, uh, you know, given a ticket for walking across that street to get to the quad, you know, and I walk across it every day and, oh, now you give me a ticket. Okay, great.

0:20:43 Thomas: However, I guess my question about that would be, I'm not sure how that makes it, like, it would be one thing if Chapman was trying to punish Eastman for using his school email for work. And then he's like, all right, but everyone does it. But this isn't really that. This is a court deciding if something's privileged or not. And I don't see why other people at the university using it would speak to that question. Is it just that, like, because other people were doing a bad thing, too, that means he had the expectation of privacy or something?

0:20:45 Andrew: That, that's exactly right. So, so let's work backwards. Ordinarily, right, like, I send emails that are privileged from my Gmail account all the time. And, right, so do lots and lots of other lawyers. The fact that I don't own Google does not lead me to believe that those emails are not private and that the substance of those communications are not covered by attorney-client privilege. To the contrary, I expect from longstanding Google practice that I can send privileged, privileged emails over Google, in the same way that I could call you up and we could have a privileged conversation, even though I'm not the phone company, either.

Now, the argument here is Chapman has a very specific policy that says, no, you can't use our email servers in connection with any political campaign. Therefore, John Eastman, you were on notice that this is not an appropriate use of school resources. Therefore, you knew or should have known that these are not going to be privileged communications, and therefore it's like having a third party in the room, that vitiates the privilege.

We we can send these emails to the One six committee, and Eastman's argument is, no, my reasonable expectation at the time was that, yeah, even though you put out this boilerplate, and you know, it shows up on the university website, that that's not how the university has proceeded in its actual conduct with respect to university professors' use of the the emails over the past two decades, and I justifiably relied on the way in which the university has treated its professors over the written language of that particular agreement. Now, again, one might, you crack a couple of jokes at a, you strict textualist like John Eastman, uh, arguing for the spirit and practice of how something was put into play.

0:21:54 Thomas: Yeah. Yeah.

0:23:06 Thomas: Yeah, it's in the penumbra of the email policy, I swear.

0:23:06 Andrew: Uh, that's right. But look, we are obligated to apply good law even to somebody who has a bad faith method of legal interpretation. And at the end of the day, I think that the court is either going to craft some kind of limited relief here, or is going to say, my argument for waiver does not depend on the breach of Chapman University policy. Remember, there's seven different ways that they can get at deprivileging the Eastman emails. So, in a classic, like, Eastman may win this battle, but lose the war. The fact that Eastman has submitted secondary briefing on this, right? Again, this is clearly purely pretextual to drive up Chapman's costs.

0:23:57 Andrew: He's right, mad at the university for taking an adverse position. And so he wants to serve all kinds of discovery on them and track down former school officials and, you know, just put them to a ridiculous burden because, you know, that's one way of slowing up this process, um, I think that this shows just how bad Eastman has it right now, right, that this is a legitimate area where he's worried he could lose and there are seven paths to this court revealing those documents. So, uh, but but I will tell you, you know, we got to call them like we see them, and if you, uh, put any other parties in here, right, the the, the idea that says the other side produced an affidavit that said, no, this didn't happen, I think a court would be inclined to hear, right, but I want to produce evidence that shows that that statement is pretextual or false.

0:24:48 Andrew: I think if says it's concerned about this waiver issue, that it will craft a limited form of relief for Eastman here. Here the easiest path is of course to say we're not concerned about that as an issue, right, these are multiply not privileged for lots and lots of reasons, right, but um but there you go

0:25:06 Thomas: Yeah. Why are we still doing this? When is this going to end, Andrew? When will these documents come out?

0:25:09 Andrew: Yeah Again, I hope soon, um, I don't have any more insight into what's taking the court so long than you do, but I'm, uh, I am as anxious as anyone.

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0:27:10 Clip: Down the law, down the law.

0:27:14 Thomas: And now there's an update in Activision Blizzard. Lizard, there's a settlement that's going to get entered?

0:27:20 Andrew: Yeah, so let let me, uh, kind of redraw the timeline here. This is obviously something we've talked about a lot yeah Nice, yeah, near the end of last year we talked about the dust up between, uh, the federal Equal Employment Opportunity Commission, which had brought suit against Activision Blizzard, reached a potential settlement, and then all of a sudden, the California Department of Fair Employment and Housing, or DFEH, moved to intervene and said, wait a minute, this settlement is woefully inadequate. Because when we first looked at the settlement, we were like, well, you know, on the basis of assuming good faith by the EEOC, you know, here's the structure. This seems like it is reasonable, a settlement, provided that the numbers of current and former Activision employees are not so huge as to dwarf the $18 million that was part of the set-aside.

And DEFA came in and basically said exactly that and said, look, we've been jointly investigating Activision for years. EEOC knows that these claims are numerous and that $18 million isn't nearly enough. We want to be able to intervene in this action. There were spats back and forth about former lawyers and conflicts and privilege. And, you know, we mentioned that was not a great look for either governmental

0:27:25 Thomas: Yeah, previously on Opening Arguments.

0:27:46 Thomas: Mm-hmm. Yeah.

0:28:36 Andrew: Agency. And then we haven't talked much about Activision Blizzard since then. So let's, let me update you on where we are. On December 20th of 2021, the court denied DEFA's motion to intervene. Okay. The court said that you're trying to intervene to introduce evidence that the consent decree, the proposed settlement, is inadequate. We don't think that you meet the requirements for mandatory joinder, so we are not going to allow you to intervene in this case. And in terms of permissive joinder, that is, are you going to help the litigation, the court said in that order, quote, "While the court finds that formal intervention is not appropriate, DEFA has enough of a general public interest in the subject matter of this lawsuit and its resolution that the court will allow it to present its position to the proposed settlement, revised consent decree, via an amicus brief."

0:29:29 Andrew: While DEFA will not have the rights as a formal party, its concerns can be expressed succinctly through this mechanism and will be considered by the court. So, DEFA, you can file your objections to any revised proposed consent decree within 15 days after that gets filed. That was right before Christmas. Then on January 4th, the parties filed the proposed amended consent decree. That is the settlement that we talked about. It is substantially the same, right? It is an $18 million set aside plus everything that we described in the show. And so with the additional evidence that came out, that felt inadequate.

0:30:10 Thomas: Yeah.

0:30:10 Andrew: And so DEFA then, within two weeks, filed its objections on January 18th. And again, all these documents, we've uploaded them to our website. I've downloaded them from PACER, and they are a part of the public record. And DEFA's objections to the consent decree, um, in a concise format, uh, said, really, we're worried about that, there's... there's a bunch of different things, the money is inadequate, right, there are way more claimants than $18 million is going to cover. That was, although they made it the C point, I would have made it the A point.

0:30:44 Thomas: Yeah.

0:30:45 Andrew: It says, although the EEOC's complaint is devoid of factual allegations, the public record is not. And then it links to all of the coverage. It doesn't link to all of the coverages, but it links two multiple news stories covering the litigation that says, because, yeah, there are lots of potential victims that are out here. The proposed consent decree provides an inadequate compensation for these widespread Title VII claims because, by comparison, DEFA recently submitted for court approval a consent decree settling sexual harassment and discrimination claims against one of Activision's main competitors for $100 million on behalf of 2,365 potential female participants. Here, the EEOC agreed to less than a fifth of that amount for a much larger group.

0:30:45 Thomas: Huh.

0:31:32 Andrew: And in fact, yeah, when we talked about that settlement, we said that this feels like this is going to be grounds for increasing the dollar amount in the settlement. It did not. OK, so that was that was the first argument. The second argument has kind of an A and a B component to it. And it is that the EEOC claims requires that in order to receive compensation, that any settling party release all claims against Activision, which would include the state law claims that is the subject of DEFA's parallel lawsuit. And so, in other words, that would force potential women to choose between a guaranteed settlement in the EEOC federal litigation, Which if they take, they have to release Activision as to all claims, including their state law claims, for which they would then receive zero compensation because those were severed out, or continuing to go ahead and litigate the state law claim, but giving up on their right to be a part of this settlement.

Seems like a very, very strong argument to me, and we will continue to go through this, but the B point, I think, uh, is where, uh, DEFA sort of dropped the the ball on this. Their B point is, and also the settlement requires, uh, the destruction of evidence that is is potentially relevant to our state law claims, and therefore, it has to be invalidated on that basis. I have to unpack this a little bit because I think DFA is overreaching on this claim, but I need to explain kind of textually where that comes from.

0:33:14 Andrew: So it comes from Section 10A of the proposed settlement. So Section 10A says, within 30 days of the date that the EEOC notifies defendants of the names on the distribution lists, defendants agree to, and that is Activision Blizzard, remove from the personnel files of each eligible claimant any references to the eligible claimants' allegations of sexual harassment, pregnancy discrimination or related retaliation, or determined by the EEOC to be related to such allegations. Defendants must maintain a record of any information removed from an eligible claimant's personnel file pursuant to this subsection, separately from the eligible claimant's personnel files, consistent with the record-keeping provisions contained in Section 10J or otherwise required by law. And, active and uh, DEFA says, but there is no 10J. The problem is is that that's, it's just a typo.

0:34:08 Andrew: And there's a 12J, right? And 12J record keeping says, so let's deal with that first part. The 10A says, we agree to the settlement, and then Activision gets to go back and redact its personnel files. And it gets to remove references to claims of sexual harassment, pregnancy discrimination, right, dutifully taken.

0:34:28 Thomas: Why would that be exactly?

0:34:30 Andrew: Because part of the settlement is not admitting the wrongdoing, right, is to say, yep, are going to settle. We are going to provide a certain amount of money. We are giving up our right to litigate those claims and we want to maintain the position that we have, which is we are not conceding that any particular conduct towards any particular person was tortious or in violation of Section Section 7. The reason to do that is, again, for subsequent litigation, right? Like if you concede liability, then it's trivially easy for every subsequent claim to come by and go, yeah, well, you've conceded in open court that this violated Title VII. You did the same thing to me.

0:35:15 Andrew: Therefore, I want the same amount of damages. Right? Right. So do we, is it a pro-Activision position? It is. If the settlement amounts were accurate, it's the kind of thing that you would want to have in place in order to get. Right. You would say, all right, well, we will trade that public acknowledgement of guilt for getting some form of adequate compensation to all of the victims. Coupled with an inadequate settlement number, or a number that certainly appears to be inadequate, feels pretty hollow.

So yeah, Activision gets to go back and redact its personnel files and remove those references. But in connection with other litigation, Section 12J says documents generated in connection with any complaint of sexual harassment, pregnancy discrimination, or related retaliation, including documents related to all investigations or resolutions of any complaints and the identities of witnesses identified by the complaint or through defendant's investigation shall be kept. Defendants will review with the EEO consultant, consultant. Remember, they bring in an outside third-party lawyer, their record-keeping procedure that provides for the centralized tracking of complaints, including those of sexual harassment, pregnancy discrimination, and related retaliation complaints, and the ongoing evaluation of such complaints to prevent retaliation. The EEO consultant will confirm that the records to be maintained include that category that I just described. And it's longer than that. So think, so the problem with DEFA argument is, is not clear to me that the order requires or permits Activision to destroy evidence because they are redacting their files, but they're keeping that information in a separate, segregated

0:36:56 Thomas: Hmm.

0:36:57 Andrew: System subject to outside third party review. And again, I think this settlement is inadequate. I want to be very, very clear about that. But I think that overreach on the argument wound up hurting DEFA's credibility, which we're going to get to in a second. I need to say, I would have made my argument, I würde have made two arguments if I were DEFA. I would've said, one, settlement amount is not merely enough. We know there are way more claimants than initially thought, and lots of other settlements in similar ways include much higher reserved funds to pay claims. That would have been argument A. And argument B would have been, in order to participate, and this is exhibit C to the proposed amended consent decree, right, to the settlement, you have to sign an omnibus waiver of all claims against all parties, okay?

0:37:48 Andrew: I'm to read to you from that attachment C because it is a complete release, right? It says, am releasing any claims for sexual harassment, pregnancy discrimination, which, by the way, pregnancy discrimination was the part that was carved out for the DEFA state litigation, the right, EEOC is not raising those claims, or related retaliation that is covered by Eeocy, whether currently known or unknown to me, that were asserted or could have been asserted against Activision Blizzard in the EEC action in the Fair Employment and Housing Act, or under any any applicable federal, state, or local law that exists at the time I sign the release. This includes sexual harassment, pregnancy discrimination, or related monetary claims for relief for damages that have been or may be asserted by me or any other person or entity, including any government agency, on any action, including but not limited to a representative class or collective action.

0:38:45 Andrew: And if if that is not clear enough on the very next page in bold print, it says I will first it says, I further understand that the California Department of Fair Employment and Housing DFA has filed suit against Activision Blizzard. I understand that in the default lawsuit, the defense brought claims on behalf of female workers of Activision, Blizzard, Activision Publishing and Blizzard in California. And then this is the part that's in bold. By signing this release, I waive any right I may have to recover any monetary damages or other relief. The DEFA may recover in the DEFA lawsuit for sexual harassment, pregnancy discrimination, or related retaliation. So I had to dig that up and put that together. Okay. DEFA should have made that their one or two argument, right? They should have said, look, this will effectively prevent us from litigating our case because you're going to announce a settlement.

0:39:36 Andrew: Women are going to sign on to the settlement, and they're not going to realize until they file their claim form and go and are about to get paid that they have to sign Attachment C, which contains the language that I just read to you, and that language explicitly says we're compromising all of your claims, you're settling known, unknown, right, in perpetuity, throughout the universe against, against Activision Blizzard. That stated succinctly, I think, would have been a powerful argument. That didn't happen. What did happen was on March 4th, an Activision employee named Jessica Gonzalez moved to intervene, asserted, piggybacked onto DEFA's arguments, said settlement value isn't enough and you're going to require us to destroy documents. The court summarily denied that motion to intervene on March 22nd.

One line that just said, "For the reasons stated in the oppositions filed by the EEOC and Activision, we do not think she should join the complaint." And then the same day issued an order regarding the hearing on the consent decree. Sorry, so, that was Tuesday, March 22nd, one week ago, that says, court, the court has viewed all the fileings in this matter, and is prepare to approve proposed amended consent decree, subject to limited further argument and revisions addressing the court's concerns.

0:39:57 Thomas: Yeah.

0:40:56 Andrew: I am not going to read the court concerns because they are mostly ministerial and typographical. Right? Reference in section 10A to 10J, J should be to 12J, the decree should have a table of contents, right, like, but basically the court's saying I am going to approve the settlement as it's written on March the 29th, that is, by the way, as you are listening to this show, if you listen to the show as soon as it comes out. It then says, um, the parties have not specifically responded to DEFA's objection, though the court notes that many of the statements in the objections are simply inaccurate, based on speculation, or otherwise address issues that DEFA should not be concerned with. That's really bad language for a court to say, right? So the court weighed in and basically was like, in the spat between the EEOC and DEFA, we're siding with the EIOC.

0:41:47 Andrew: And credibility. And I think the DEFA had the defensible public policy position. They lost credibility in terms of how they litigated this. Continuing, as to the release of the FEHA, that is, the Fair Employment and Housing Act claims for sex harassment, pregnancy discrimination or related retaliation, though the EEOC has noted that the regional attorney's manual explicitly states that the EEOC's compliance or noncompliance is not subject to judicial review. View, the EEOC also states that the manual explicitly allows releases of claims beyond Title VII if the eligible claimant is represented by counsel, as will be the case here. And then the court says, here, however, there is no requirement that the claimants be represented by counsel. Only an indication that they may do so and an offer of compensation for one hour of attorney time.

0:42:33 Andrew: The party should be prepared to submit any additional authority on this issue and may do so before the hearing. So let me unpack that. This is saying, hey, your practice, EEOC, is to not settle claims beyond Title VII, which would overlap with the DEFA pregnancy claims, that broad waiver that I just described, unless they're represented by counsel. The plaintiffs will not be represented by council here. So I want to see authority on that point, complaint, or some kind of, this is implicit, but some kind of modification to the proposed settlement agreement that basically Activision will pay for, you an hour's worth of outside counsel time for each plaintiff or something like that, which Activision, I am sure, upon reading that kind of "Here's your path to settle out this case for $18 million," happily called up the EEOC and said, "Yeah, oh, yeah. Yeah. Well, you, well, want the outside compliance officer to pay for law time for anybody who's subject to the plaintiff class who wants counsel, knowing that almost none of them will even request that in the first place." Right. Am, I'm confident that that's what they're to do.

0:43:26 Thomas: Yeah.

0:43:43 Thomas: And because 18 million is such a pittance, I'm sure they'd do anything to get out for that.

0:43:45 Andrew: Exactly right. Yep. Yep, exactly right. And Right. So going to watch the hearing, which is going to be by Zoom only. I will tell you that the court has basically teed this up and said, here's where I'm going to come down. And it should be disappointing. It absolutely Absolutely. The statements that the EEOC has made that this does not foreclose on the existing DEFA lawsuit, which were echoed by this court, are true, but only in the technically correct and not the best kind of correct sense of the word.

0:44:01 Thomas: Yeah, what the heck? Heck, I thought that was the whole problem here was that, that would foreclose on, I though that was exactly what the big issue was here or am I misunderstanding?

0:44:25 Andrew: Yeah. And so here's the hairline distinction that they are making. Speaking defa can go forward with its lawsuit. The problem is is that anybody who participates in this settlement will then be precluded from participating in the lawsuit. Right? So it doesn't stop them in the technical sense.

0:44:43 Thomas: Okay, here's a cool workaround because the whole issue, Would this one weird trick work? The whole issue is that this is not enough. There's too many victims and there's not enough money to go around. Could they organize amongst themselves and be like, here, couple of us will We'll take that 18 million. Nobody else participate. And then we'll get a better one later for the rest.

0:45:03 Andrew: You. You could, but that would require you, as somebody who was wrongfully terminated, or passed over at Activision,

0:45:09 Thomas: Yeah. To turn down the money in order to maybe get something later.

0:45:13 Andrew: Yep, exactly right. And that's not a position we should be putting plaintiffs in. Yeah. So,

0:45:15 Thomas: Yeah. Oh, not at all. I just mean in order to try to work around this.

0:45:19 Andrew: No, no, no, no, I I commend your efforts to look for a solution. That's why this is a problem, right? This is pitting two sets of, you know, this is pitted potentially two sets of victims against each other, those right who will be first in line and maybe get a hundred cents on the dollar from Activision versus those who look at it and go, right, all well, I'm now running the risk of compromising my claims for less than 100 cents on the dollar or rolling the dice with a lawsuit that, you know, DFA may look at this and go, all right, well, I guess we don't have enough plaintiffs to continue with our lawsuit now. And then you're left holding the bag, nothing. Thing.

0:45:50 Thomas: Yeah.

0:45:59 Thomas: But would they, are they allowed to, sorry, I'm going down a rabbit trail, but are they, to contract with each other over this? Like, are they allow to agree on like, let's say the victims got together and we're like, all right, this first Right. Thing is BS, but we'll have a few of us take that. And then contractually, if you guys don't win more down the road, then, you know, you're entitled to some of this or is that latches or whatever the heck that term is.

0:46:02 Andrew: No, no, it's great.

0:46:23 Thomas: What's the term where you bet?

0:46:23 Andrew: Uh, Champerty.

0:46:24 Thomas: Bet on? Jeopardy. That's the one I'm thinking of.

0:46:25 Andrew: Where you Uh, where you bet on the litigation. Yeah, um, I don't know if it would run afoul of the champer tea rules. Um, it may run afoul of, uh, you know, collusion in connection with litigation. I've, never seen that kind of practice, uh, bear out. And coordinating it seems like it would be incredibly complicated. So my view, even if it is legal, it would be almost impossible to put in in practice. And I'm not sure that it's legal to do that.

0:46:52 Thomas: Dang, okay.

0:46:53 Andrew: To be thinking about it. But no, this is rough. And we've been covering this case from the very beginning. I continue to, yeah.

0:47:02 Thomas: We any closer to any answers, Andrew, about why the f, like, what's going on, because it seems like it's basically the Eoc, right? That's the main problem here, that they agreed to a low number for some reason. If we found out why that is, why they haven't like backed away from it or anything or gone back on it, what's, what the heck, right?

0:47:13 Andrew: Yeah.

0:47:22 Andrew: No, We have zero indication of such. And all we have to go by are judging the behavior of the parties. And again, a typical government watchdog agency, like, suppose, suppose that EEOC in good faith initially thought at this time last year, a little later, it was in the summer, but that 18 million dollars was an adequate amount out. And then Defa comes along, and never minding the fact, you know, you gotta, you gotta assume some things contrary to fact, right, which was that both agencies were working in concert for years on the investigation, so they had access to the same level of information, but suppose hand wave all that away, suppose there was a genuine mistake of fact, and then Defect comes in and is like, um, hey, remember, remember, we were looking at all the pregnancy-related claims, and this should be an order of magnitude higher at least. You would expect, right, the EEOC to go back and go, oh, yeah, our bad on that, right? Like, no, there

0:48:04 Thomas: Yeah.

0:48:25 Thomas: It's not like they can't do that, that, right? Is there any rule that says they can't stop being crap?

0:48:30 Andrew: Is no—that's why this is a proposed consent decree, they can come back and say, yeah, we we put forward the first one was under the mistaken belief that the pool of claimants was smaller than it is.

0:48:42 Thomas: Yeah. A motion of whoopsie daisies.

0:48:46 Andrew: Yeah, we're going to we're gonna put forward The New One, but we're not going to agree unless that reserved is much, much higher. They didn't do that in this case. And if you want to know why, you they will tell you that's privileged. And so I can't tell you why. I can only tell you that I think that that was a terrible result. And that will be approved by the court while you are listening to this episode. So we wanted to bring that that that story to a close. It's not a happy one.

0:49:15 Thomas: Is this a close close? This is done deal.

0:49:18 Andrew: Again, the hearing is on the 29th. Is it possible that something derails it at that point? It is, but not likely. Right, I mean, I've I've told you what could, what could derail it. We will give you a final, final version, you on Friday's show. But, but as of right now, when you're listening to this, this is uh the bad news that I anticipate we'll

0:49:36 Thomas: Well, that is a bummer. Okay, Final question. Who I is more to blame for this then? Do you blame the court for ruling the way it did, or do you blame more the EEOC for just not doing what we've said they should have done?

0:49:37 Andrew: I I, again, without having having full access to all of the documents that were put before it. Right. Remember the accusations of privilege that went back and forth and we tried to parse through some of them. It's hard for me in a vacuum to to blame the court, other than to say the court very clearly came away with the view that the EEOC was wearing the white hat here. And, and the the DEFA was the the bad actor. And I can say, based on the legal arguments that were presented, can understanding why somebody would have come to that conclusion. Right, with no outside knowledge, I look at it, and, right, the argument on record, recordkeeping, you want to make it to preserve the argument, fine, make it in a footnote, right?

0:50:37 Andrew: It feels like you're playing fast and loose with the facts of the case. And that's just not great practice in front of a judge, you know? So this is, in addition to sort of the sad recap, it's a cautionary tale on, you how you present your arguments, and a good contrast to what we talked about, uh, in the last couple of segments, right, of, uh, good litigating, uh, for example, on on Friday show, yeah, exactly. So I think the DEFA did itself no favors in court.

0:51:01 Thomas: Yeah, even when you're wrong. Yeah. Well, shoot.

0:51:08 Andrew: I know.

0:51:09 Clip: And thank you, Let's go!

0:51:10 Thomas: Now it's time to thank our Hall of Famers, our all-time greats, our top supporters on patreon.com/law, enjoying all the goodies, these ad-free episodes, early episodes, Q&A questions.

0:51:20 Andrew: Thomas, is this the third quartile

0:51:22 Thomas: This. This isthe fourth quintil. And we always say that's the best quintile. I think we're on the record as having said that.

0:51:27 Andrew: Obviously, I mean, there is there is no better quintile than the fourth quintile this week. I

0:51:31 Thomas: Absolutely. And I'll start us off with the impossible Hamburglar. I love that one. I never get tired of that one, Ethical Thomas, the real E.T. Aw, thank you. Jason Kopas, Bob Coburn. Objection, the witness is a badger. Stop calling him Uncle Frank. Nate Drex has to call him Dad. Ian Hamilton, we don't talk about Bruno, no, no. You're welcome for the earworm. Crime or no criming, definitely not an MSNBC spy. Sexual Anarchy, new band name, called it. CivilPoliticsRadio.com, Fridays at 7 p.m. Eastern on Valley Free Radio. John Bilderbeck, Jennifer Kratch, I'm so redlining this bad intellectual property thing, Mike Hudson, the boring slut, stop Aluata slander, my friend's cousin mixed coke with cop rocks and he died, and Stephen Balticate Sandoval, your turn.

0:51:36 Andrew: Love that one too.

0:52:23 Andrew: Woohoo, and thank you to my lawyer, advised that my hopes regarding the outcome of Clarence Thomas's hospital care are unsuitable for Patreon, you get advice, Philip, Philíp, Kizer. Seriously, though, live show in Minneapolis, Andrea the arbitrary and capricious pain strumpet, Medicon, seven, seven care surges, what do call a Christian who actually read the Bible, an atheist, I'll skip this one because the patron obviously made zero effort to be interesting, that's not true, Abscion, new year, new patron name, same great karaoke legend, Jonathan Milo Mead song takes full and sole credit for the retirement of Stephen Breyer, you were on that for a long

0:52:32 Thomas: Not me, cheering for the infection.

0:53:04 Thomas: Yeah,

0:53:04 Andrew: Time, Milo, So

0:53:05 Thomas: Milo, can you join me in cheering for an infection? I'm not saying what one. I'm just just cheer for an injection. It's not a point to me in the Constitution, Clarence Thomas, where it says I can't cheer for the infection that is possibly infecting you right now.

0:53:09 Andrew: So, and yeah, give to modest needs dot org. Then visit deep fake stop dot com. Join your labor union together. We bargain alone. We beg. Crimer. No criming. Felony trial for Sergeant Javi Escueda in retaliation for whistleblowing police misconduct begins in July. And I love this one. If you like subpoena coladas and go and go into court under pain, if you're not into prison, if you have half a brain, get Rupert Holmes reference there. So great, great work. And thank you all for being Hall of Fame supporters over patreon.com/law five bucks an episode or more. And that gets you on this fantastic quintile list.

0:53:34 Thomas: Yeah.

0:53:43 Thomas: Good times.

0:53:56 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:54:02 Thomas: And now it's time for T3BE. Thomas tries to be ethical for the last time. I'll never try again. This is the last Time I'm Trying to Be Ethical. Question 10. Do I get a 9 out of 10 or do I get an 8 out of10? Either way, feeling pretty good. Let's have it. Answer time.

0:54:15 Andrew: All right, so this was an attorney represented a client in a breach of contract action and, uh, against the client's former business partner. In the course of that representation, the client then told his attorney, hey, and presented, quote, "with incontrovertible proof" that the former business partner had committed perjury in an unrelated case several years earlier that was then resolved in her favor. Neither the present day attorney nor the client had been involved in any way in the prior litigation. However, at the time of the prior litigation, the client and the former partner had a close personal and business relationship. So the attorney believed that it would be detrimental to her client's best interest to reveal that perjury because the court might draw negative inferences about their client from that former partner's behavior.

0:55:04 Andrew: As a result, the attorney did not disclose, for which there was incontrovertible evidence, That former partner's prior perjury to the court. Was that conduct proper? And Tom, we're going to go through this. You got this one wrong and doubly wrong, wrong, um, And Uh, and and you sort of confidently said, "I want to err on the side of being ethical here," so you picked C, no, because, uh, the attorney had possessed knowledge that the former partner had perpetrated a fraud on a tribunal, um, and I want to explain to you why the answer is A, because the attorney believed that the disclosure would be detrimental to the client's best.

And The reason for that is kind of multiply here. Right. So the first thing is, way in which you want to approach a question like this is by asking yourself, is this a question about an attorney's voluntary disclosure or a mandatory disclosure? Right. That's always the approach you want want to take in these questions. And this says, right, they did not disclose. Was the conduct proper? So to say no, that means the attorney has to mandatorily disclose, uh, what that conduct was. So

0:55:10 Thomas: Yeah. Ooh, wow. Okay. Right.

0:56:16 Andrew: Is there any provision that requires mandatory disclosure in the Model Rules of Professional Conduct? Sure there is, right? We've talked about this all the time, and the the one that I think this is meant to get you to think of in your head is to think of the client's former business partner as also being a lawyer. That's not stated in the hypothetical. Let's assume that they are, though, right? Because even if the client's former business partner is a lawyer, that would be potentially required by Rule 8.3, right, which says a lawyer who knows that another lawyer has committed a violation of the rules of professional conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer shall inform the appropriate professional authority, right? So mandatory reporting if a lawyer commits a violation that goes to their honesty, So okay? You would say, okay, well, then 8.3 would apply. Except that 8.30 says this rule does not require disclosure of information otherwise protected by rule 1.6. What is rule 1.6?

0:57:00 Thomas: Yeah.

0:57:20 Andrew: Rule 1.7 is privileged communication in the attorney client relationship. So Right. Think about and unpack how this situation comes to be. I'm representing a client in a suit against X. The client comes to me and says, hey, man, you know, X totally perjured himself seven years ago when we were. And here's the documents. Here's how I can prove it. Now the question is, did I come about that information? I came about that information because it was revealed to me in an attorney-client privileged conversation. And as it turns out, Rule 8.3's exception that says my report about misconduct is not required when it would involve a violation of Rule 1.6 says, however, a lawyer should encourage a client to consent to disclosure where where prosecution would not substantially prejudice the client's interests, right?

0:57:20 Thomas: Privilege or something.

0:58:15 Andrew: That's in the notes. So the way in which you put all of that together is even if there is a mandatory reporting under Rule 8.3 or something else, a lawyer is not required to reveal attorney-client privilege, where in the lawyer's view, revealing that privilege would prejudice the client's interests in the current representation. And that is the language used in the A answer, has nothing to do with the involvement of the prior parties. I want to say, maintaining the integrity and the sanctity of legitimate attorney-client in communications is something that I think is at the forefront of attorney ethics. So I hate that you got it wrong, but I love that we're ending with this question. I love it. I presents those sort of interlocking legal ethical issues. But here, I think if you stop and think about it, you'll think, yeah, no, if the client comes to me and says, I know about this criminal misconduct, and the only reason I know about this past criminal misconduct is through the present representation of the client, I should be very very careful in thinking about can I ever share that with anybody else, right? It

0:58:45 Thomas: Well, oh, yeah, because it's so I was thinking of, you know, crimey stuff isn't privilege when is that only when you're planning a crime?

0:59:36 Andrew: Is only for future crimes, that's right, yep. Yeah, that's

0:59:38 Thomas: Right. Oh, I should have thought of that. Yeah, No, that makes sense. Because, because we've talked about how, like, if your client tells you he did it, that doesn't mean you have to, like, oh, I gotta go tattle on you. That just means you can't represent them in the same way, because you can't, you know, make a liar out of yourself or, you know, or encourage perjury out of your client. So I should have remembered that and realized, like, okay, if it's a past crime, it's not as though you have a mandatory duty to report that. Wow.

0:59:41 Andrew: Okay, yep.

1:00:04 Andrew: And, and one of the things you might remember is something, I think I've shared on the show before, but when, uh, I have represented clients that I think are being reticent in maybe telling me everything in connection with a civil case, I, I will say to them, hey, attorney-client privilege means I can be disbarred if I reveal anything you say to me, unless what you're asking me to do is to commit a present crime. But let me give you an example of something you could tell me that I am required to keep to myself for the rest of my life, and that is Hey, I was the second shooter on the, the grassy knoll, right? Like, you, you that's

1:00:36 Thomas: Damn. It, some lawyer out there knows, knows the truth.

1:00:44 Andrew: True, like you tell me that, and if I ever breathe a word of that to anybody, uh, you, can have me disbarred, so that

1:00:49 Thomas: I know who the first and only shooter in the book depository was, though. It's Lee Harvey Oswald.

1:00:54 Andrew: That is true, so yeah.

1:00:56 Thomas: All right. Well, out of 10. Yeah. B minus in ethics.

1:01:00 Andrew: Reasonably ethical, there you go, we'll put this, we'll putting this on the bus,

1:01:05 Thomas: Let's go back to, yeah.

1:01:05 Andrew: Thomas's second chance uh, law firm, reasonably

1:01:08 Thomas: Look, we can quantify it. I have a 50-50 shot, a slightly higher than 50- 50 shot of giving you the right legal answer, 80% shot of being ethical while doing so. Come on. That's better than the Kraken attorneys.

1:01:08 Andrew: Ethical at a reasonable price.

1:01:21 Andrew: What's what's the worst that could happen?

1:01:23 Thomas: Better than the Kraken attorney. And why don't you tell us who this week's big winner of the final, for now, I guess, final ethics question is, who's our big winner? Once again I find myself on the T-3BE portion of the episode talking to myself, so I'll be picking the winner again, apparently. So, also note that not that many people played this week, so you had a really good chance of winning had you tweeted the answer with hashtag T3BEE. So when I read this person who is the winner, just know that it It could have been you. You could have had access to all of this unlimited fame and fortune, definitely guaranteed. But no, there can be only one winner. And it is at Bitter Peter who says, A, the partner's past perjury presents problems pertaining to present proceedings. The practitioner properly protects the patron by proscribing publication.

1:01:23 Andrew: Yeah.

1:02:17 Thomas: That's awesome. Good alliteration because my title almost had that. I think maybe that's where the inspiration came from, because I had polling privilege shenanigans in the title. So thank you, Bitter Peter. You're the big winner. Unlimited fame and fortune. Great work. Hopefully next week when we're back to real bar questions, we can get more of you playing along. It's a ton of fun. I love reading the answers, especially when you guys get them wrong with me. That's my favorite. So keep doing that. Congrats to at Bitter Peter on Twitter. Enjoy your never-ending, unlimited fame and fortune. All right. Thanks so much for listening. That's our show. We'll see you on Friday for the Q&A reminder on Wednesday March 30th 4 p.m pacific 7 eastern we'll see you that that first and then on Friday

1:03:02 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:03:35 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.