Yet another challenge to arbitration is found in the class action complaint against Uber, the ride sharing platform. The case is known as Meyer v. Kalanick and Uber Technologies, Inc., No. 15-CV-9796 (E.D. N.Y. 7/25/16). While the ruling on class action status will break new ground, the ruling on investigating the plaintiffs’ counsel breaks new ground of a different sort. In this matter, the defendant’s General Counsel was quite upset about the suit. He called the Chief Security Officer for the company and asked what they could learn about the plaintiffs and the plaintiffs’ counsel. The Chief then forward the email to Uber’s Director of Investigations. The Director responded simply by asking if this needed to be done in-house or out-sourced. The Director of Investigation was not troubled by the possible ethical issues of such an investigation. The Chief replied, just keep it under the radar. Uber then hired an outside investigator to look into the background of the plaintiffs and their counsel.

It is common for a defendant to investigate a plaintiff or a set of plaintiffs. It is quite unusual, so far as I know, to investigate the plaintiff’s attorney. Yet, that is what Uber did. The plaintiff law firm became aware of someone asking questions. The lawyer asked Uber’s lawyer if the company was investigating him. Uber’s lawyer denied it, at first. Later, the Uber attorney admitted they were investigating the Plaintiff’s attorney. The judge who was presiding over the case not happy. Within a week of learning about the investigation, he allowed the plaintiff law firm to depose the principals, the investigator and the Director of Investigations. The investigator misrepresented himself to acquaintances of the plaintiff and the attorney. He lied about who we was so he could ask questions about them. The investigation firm tried to cloak its investigation materials in work-product privilege. The court said no.

Uber tried to argue that its investigation was to make sure the plaintiff was not a safety threat to Mr. Kalanick. The judge was “profoundly” skeptical about that claim. The judge was concerned with the investigation of both the plaintiff and the plaintiff’s attorney. The investigation of the both persons went into everything from living arrangements, to family life to career prospects. The court pointed out there is a “crime-fraud” exception to the work product privilege and the attorney-client privilege. The deceptive nature of the investigation meant Uber engaged in fraudulent, if not criminal conduct. When investigating the attorney, the investigator claimed he was reviewing top “up and coming” labor lawyers or conducting real estate market research for a client. Regarding the plaintiff himself, the investigator claimed to be investigating environmental researchers. The plaintiff was a college professor.

The court pointed out that in acting for Uber, the private investigator was acting for the General Counsel. It does violate the code of ethics in New York , as in most states, for a lawyer to condone or employ deceptive practices in investigating a matter. The court added that litigation is by definition a truth-seeking endeavor. It would contradict this truth-seeking aspect to engage in deceptive practices. The private investigator firm tried to argue that it was not involved in the litigation. The judge did not take that argument seriously. So, the judge denied the motion of Uber and the private investigator firm to keep these investigation materials privileged.

As relief, the judge agreed that any information collected by the investigation could not be used during the lawsuit, and the court enjoined any further investigations of any persons involved in the lawsuit. The plaintiff did seek sanctions, but the parties resolved that issue in a private agreement. That probably means they agreed on some dollar value for the Plaintiff firm having to pursue this motion. But, in the end, the court bemoaned the dismal state of legal process that would lead to this sort of an investigation. As the court noted at the outset of its ruling:

“It is a sad day when, in response to the filing of a commercial lawsuit, a corporate defendant feels compelled to hire unlicensed private investigators to conduct secret personal background investigations of both the plaintiff and his counsel. It is sadder yet when these investigators flagrantly lie to friends and acquaintances of the plaintiff and his counsel in an (ultimately unsuccessful) attempt to obtain derogatory information about them.”

And, in the end, the investigator found nothing it could use. See the court’s ruling here.