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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 Wham-O, Inc., ) CV 08-1281-RSWL
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12 Plaintiff, )
) Order DENYING Defendant
13 v. ) Dubinsky’s Motion to
) Disqualify Goodwin
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Manley Toys, Ltd., et al, ) Proctor, LLP as
15 ) Plaintiff Wham-O, Inc.’s
) Counsel
16 Defendants. )
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18 On May 29, 2009, Defendant Brian Dubinsky’s Motion
19 to Disqualify came on for regular calendar before this
20 Court. Plaintiff, Wham-O, Inc., appeared through its
21 counsel of record, Thomas F. Fitzpatrick. Defendant
22 Dubinsky appeared through his counsel of record, Stephen
23 L. Raucher. Defendants Manley Toys, Ltd., Samson Chan
24 and Lisa Liu appeared through their counsel of record,
25 Daniel Lapidus. The Court having reviewed all papers
26 submitted pertaining to this Motion and having
27 considered all arguments presented to the Court,
28 NOW FINDS AND RULES AS FOLLOWS:
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 1 Defendant Dubinsky’s Motion to Disqualify Goodwin
2 Proctor, LLP as Plaintiff Wham-O, Inc.’s Counsel is
3 DENIED.
4 In his Motion, Defendant Dubinsky (“Defendant”)
5 claims that Goodwin Proctor should be disqualified as
6 opposing counsel because its attorneys disregarded
7 privilege logs of electronic information, viewed and
8 used documents in the logs that were categorized under
9 “right to privacy,” and have refused to state whether
10 they have viewed certain other privileged documents.
11 Defendant argues that Goodwin Proctor has viewed and
12 used this potentially privileged information, and
13 therefore, must be disqualified or prohibited from using
14 any of the information.
15 Goodwin Proctor and Plaintiff Wham-O argue that
16 Defendant never intended to produce this relevant
17 information and that the materials prove alter-ego
18 liability and Defendant’s ownership in Manley.
19 Furthermore, Goodwin Proctor argues that the information
20 is not privileged, that there are no rules supporting
21 Defendant’s “privacy” claim/right in Federal Court, and
22 that even if there was a privacy right, Defendant did
23 not properly assert it in this case.
24 The facts show that Defendant produced the same
25 computer images and discovery materials to Goodwin
26 Proctor that he produced in Wham-O v. Sefchick, et al.,
27 Case No. RG07329828, a case on trade secret
28 infringement. Upon producing this information, he said
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 1 it was produced “subject to all applicable privilege
2 logs.” (Def. Mot. at 7.) The logs in question are
3 titled “privilege/privacy log for Brian Dubinsky.” See
4 Declaration of Raucher Exhibits. D, M, and O. Under the
5 “privilege/privacy claimed” column, the log includes a
6 mix of the following claimed privileges: “attorney
7 client/work product,” “right to privacy” and “marital
8 privilege/right to privacy.” Id.
9 While there may be some right to privacy under
10 California law, federal claims on privacy trump state
11 claims. Scheetz v. The Morning Call, Inc., 946 F.2d
12 202, 206 (3rd Cir. 1991); See also, Charles O. Bradley
13 Trust v. Zenith Capital L.L.C, No. C-04-2239, 2005 U.S.
14 Dist. LEXIS 35562 (N.D. Cal. May 3, 2005) (holding that
15 federal, not state, law on privilege applies despite
16 Defendants’ claims that information on their net worth
17 and financial condition is privileged as a matter of
18 privacy under the California Constitution).
19 While there is no automatic federal right to
20 privacy in personal finances, federal courts do
21 recognize that a party can assert a privacy interest in
22 response to a discovery request. Johnson by Johnson v.
23 Thompson, 971 F.2d 1487, 1497 (10th Cir. 1992).
24 However, the privacy interest is not absolute and there
25 must be a balancing test between one party’s need for
26 the financial information and the other party’s privacy
27 interest. Bradley, 2005 U.S. Dist. Lexis 35562 at *8,
28 Fn.1. If the court applies the balancing test and
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 1 determines that the interests favoring disclosure
2 outweigh the interests favoring non-disclosure, the
3 information must be disclosed. Id. at *7-8; See also
4 Plante v. Gonzalez, 575 F.2d 1119, (5th Cir. 1978).
5 However, this privacy interest is not automatic and must
6 be properly sought. Therefore, Defendant’s unilateral
7 classification of his private financial documents as
8 private is an insufficient method for asserting any
9 alleged privacy right.1 Therefore, at this time the
10 documents are not privileged, there was no violation of
11 privileged materials,2 and there is no reason to
12 disqualify Goodwin Proctor as Wham-O’s counsel.
13 Moreover, even if there was some properly asserted
14 privacy right, Goodwin Proctor’s actions do not warrant
15 disqualification. There is a legitimate dispute between
16 the parties over whether these documents are privileged
17 and if any such rights had been properly asserted.
18 Furthermore, it is fairly clear that many of these
19 documents are relevant to the case and Defendant should
20 have disclosed them earlier.
21 Furthermore, the cases Defendant cites to support
22 his request for disqualification are clearly
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24 Moreover, Defendant produced the computer image and
discovery materials subject to all applicable privilege logs
25 (emphasis added). Thus, in the absence of a protective order or
automatic federal privacy right, Goodwin Proctor was not wrong in
26 disregarding the materials Defendant designated as private.
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The Court finds that Goodwin Proctor has not viewed
properly designated attorney-client privileged documents.
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 1 distinguishable from the facts of this case. Goodwin
2 Proctor’s actions were not nearly as questionable as the
3 events in the cases where the motion to disqualify was
4 granted. For example, in Rico v. Mitsubishi Motors
5 Corp., the court granted a motion to disqualify an
6 attorney who made copies, disseminated, and used in a
7 deposition, information that clearly fell under the
8 attorney-client privilege. 171 P.3d 1092, 1099 (Cal.
9 2007). See also Gomez v. Vernon 255 F.3d 1118, 1134
10 (9th Cir. 2001) (affirming the imposition of sanctions
11 on attorneys who acted in bad faith and continued to
12 collect and read documents after being advised by the
13 state bar to send documents that involved confidential
14 communications between inmates and their attorneys to
15 the court). Purposely disseminating clearly privileged
16 information, especially after being admonished to stop,
17 is far more problematic than using debatable information
18 to send discovery requests. Most importantly, the
19 documents in Rico and Gomez were clearly privileged
20 attorney work product. Id. at 1097.
21 Further, disqualification is an extreme remedy and
22 should not be granted without considerable thought.
23 Hetos Investments, Ltd. v. Kurtin, 1 Cal. Rptr. 3d 472,
24 480 (Cal. App. 4th Dist., 2003). Courts recognize the
25 adverse affect that motions to disqualify have on the
26 side that loses its representation and recognizes that
27 they can be used as a strategic tactic to delay
28 litigation or increase costs. Board of Ed. of City of
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 1 New York v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979).
2 Therefore, “motions for disqualification require a high
3 standard of proof on the part of the party seeking to
4 disqualify former counsel.” See Evans v. Artek Sys.
5 Corp.,715 F.2d 788, 791 (2d Cir. 1983). Neither
6 Defendant’s evidence nor Goodwin Proctor’s actions
7 warrant such a harsh penalty - especially without clear
8 evidence that Goodwin Proctor committed a serious
9 ethical breach. See Evans v. Artek Sys. Corp.,715 F.2d
10 788, 791 (2d Cir. 1983).
11 In conclusion, the Court finds no properly asserted
12 privacy right.3 However, if Defendant still seeks to
13 protect certain financial documents, he may obtain a
14 protective order from the Magistrate to put certain
15 restrictions on their use and access by others. See A.
16 Farber & Ptnrs., Inc. v. Garber, 234 F.R.D. 186 (C.D.
17 Cal. 2006). If the Magistrate finds that certain
18 documents should be precluded as private, then Wham-O
19 will be precluded from using such documents.
20 Neither party will be sanctioned for any actions at
21 this time.
22 IT IS SO ORDERED.
23 Dated: July 2, 2009
HONORABLE RONALD S.W. LEW
24 Senior, U.S. District Court Judge
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Further, the Court has doubts about the sincerity and
27 purpose of a request to completely preclude Wham-O from reviewing
28 these documents, other than for the purpose of hiding relevant
documents.
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