Litigation
Nov. 9, 2016
Request for State Bar information denied in SF Superior Court
In a battle of the experts, ruling closely follows arguments presented by State Bar.
Daily Journal Staff Writer
A law professor's request for demographic and academic information about State Bar applicants was resoundingly denied Monday in a ruling by San Francisco Superior Court Judge Mary E. Wiss.
The denial follows a five-day trial that pitted UCLA School of Law Professor Richard Sander against the State Bar. Sander sought data such as race, year of graduation, LSAT scores and law school GPA in order to test a theory that suggests benefactors of affirmative action are set up to fail at elite institutions. Sander et. al. v. State Bar of California et. al., CPF08508880 (S.F. Super. Ct., filed Oct. 3, 2008).
The July trial was the second half of a bifurcated suit filed in 2008. The California Supreme Court in 2013 unanimously ruled in favor of releasing the data as long as the information would not allow for identification of individuals.
The July trial was largely a battle of experts arguing the potential of an individual being identified with the help of the information sought.
Wiss found that granting a release of the data would have "real, personal consequences for State Bar applicants," and stated five different grounds for denial. The ruling follows nearly every point argued in trial by James M. Wagstaffe of Kerr & Wagstaffe LLP, who represented the bar.
The ruling notes the California Supreme Court reached its decision exclusively on common law, which Wiss ruled is now superseded by the California Public Records Act (CPRA), which the State Bar helped pass at the beginning of this year.
James M. Chadwick, a partner at Sheppard, Mullin, Richter & Hampton LLP who represented Sander, argued the bar would not have to create new records to produce the information sought. The point was key in the case because the public records act requires documents be presented in their "native" format and does not require bodies to produce new documents to satisfy a request.
Not only did Wiss find that anonymizing the data for release would require the creation of new documents, she ruled it would also lead to "unhealthy comparisons among lawyers, law students and other professionals and impede the goal of greater diversity in the legal profession."
Several minority attorneys testified to their fears of identification at trial, and Wiss found their arguments compelling. Wiss' ruling also references the testimony of the bar's expert, Harvard University computer science professor Latanya Sweeney.
While Sander's expert had limited experience with k-anonymity, the patented security technique that became a crucial point in trial, Sweeney literally wrote the book on the topic. Comparing the release to the work that brought Sweeney to prominence — she once mailed Massachusetts Gov.William Weld his medical records using what he had described as "anonymized" data — Sweeney convinced Wiss of the potential for identification and found the threat outweighed public interest.
"This is a vindication of the privacy rights of hundreds of thousands of California lawyers," Wagstaffe said.
In an email Monday, Chadwick said his client was "dismayed by the court's decision."
"Moreover, the court's determination that disclosure is barred by recent legislation pushed through by the State Bar seems inconsistent with the court's prior decision denying the State Bar's motion for judgment on that basis," Chadwick wrote, adding appeal is a definite possibility.
The bar, which promises anonymity to applicants who provide the information sought, praised the decision.
"The bar is committed to protecting the individual privacy interests of all applicants who take the bar exam," Elizabeth Rindskopf Parker, executive director of the State Bar of California, said in a statement.
philip_johnson@dailyjournal.com
Phil Johnson
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