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In the last four months, multiple high-ranking attorneys from the Alameda County district attorney’s office have been deposed in the gender discrimination suit against DA Tom Orloff. But attorneys for the plaintiff, veteran prosecutor Angela Backers, are hitting a brick wall every time they ask those prosecutors to divulge information on how certain male and female employees were ranked for promotion. In the latest skirmish, which will come to a head at a hearing on Monday, Backers’ team is asking Judge Patrick Zika to compel the defense to provide evaluation documents of employees up for promotion. They also want the judge to compel three senior attorneys to answer questions about what was discussed during three closed-door meetings during Orloff’s tenure, dating back to 1998. The senior staffers — Richard Klemmer, Thomas Rogers and Matthew Golde — were among those who discussed and ranked candidates for promotion at the meetings. On advice of counsel, Klemmer, Rogers and Golde refused to answer the questions at depositions. “If Mr. Orloff passed over highly ranked and highly qualified women for discussion, in favor of discussing lower ranked and/or less qualified men — as plaintiff believes he did — this would obviously be relevant to plaintiff’s gender discrimination claim,” Backers’ attorney, Jeffrey Ross of Oakland-based Dickson-Ross, argued in Backers’ motion to compel. The only way to determine how candidates were ranked, Ross added, is to review those documents and take the testimony of those who participated in the meetings. But Orloff’s lawyers at Keker & Van Nest contend that Backers hasn’t met the heavy burden of showing that the sought-after information is directly relevant and essential to her suit. Transcripts from depositions show Keker partner Steven Taylor ordered the prosecutors not to answer those questions, asserting that the candidates’ right to privacy would be invaded, according to court filings. Discussions held in those three meetings concerned which deputy DAs to promote to Assistant I — a position Orloff promoted Backers to more than six years ago — Taylor argues in his opposition motion. In her suit, Backers — a homicide prosecutor — claims she was denied a promotion to Assistant II because of gender stereotyping. But, Taylor wrote in a court filing, Backers has failed to show how any alleged double standard in the promotions process for Assistant I is related to her claim that she was improperly denied a promotion to Assistant II. Filed in January, Backers’ suit against Alameda County, the DA’s office and Orloff alleges Orloff unfairly denied her promotion and fostered discrimination against women. Since then, Keker has taken over the defense and filed a lengthy motion for summary judgment. Backers’ team, which now includes Santa Barbara-based attorney Simona Farrise, has not yet filed a reply to that motion, which is scheduled for a Jan. 29 hearing. According to employment attorneys not involved in the Backers suit, discovery disputes over employees’ personnel records are common, and the judge will have to balance the privacy interests of the individuals whose records are being sought against the plaintiff’s right to that information. Plaintiff lawyer Scott Cole, of Oakland-based Scott Cole & Associates, said courts generally allow plaintiffs to obtain personnel evaluations because the discovery rules before trial are “very liberal.” But if the discovery motion is simply a fishing expedition, Cole said, the courts will recognize that and deny the motion to compel. And the information that surfaces when plaintiffs are successful, he added, tends to be crucial to their case. “There aren’t many smoking guns in employment law, but where there are smoking guns, this tends to be where you’ll find them.” San Francisco attorney Allison Woodall, a Hanson, Bridgett, Marcus, Vlahos & Rudy partner who defends employers, hasn’t had a case where performance reviews have clinched the case for the plaintiff. But still, she said, those documents can make it more difficult for the defense. “Things can be taken out of those reviews and be taken out of context and end up being used,” Woodall said. “It becomes more like collateral.” Keker partner Susan Harriman declined to comment about Backers’ motion to compel, and none of Backers’ attorneys returned phone calls seeking comment Tuesday.

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