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Judge in Salesforce MDL To Decide Whether Plaintiffs Can Use Discovery in Related Cases

July 22, 2022 Michelle Casady

The judge presiding over multidistrict litigation in which Salesforce.com is accused of facilitating sex trafficking presented the parties with a novel idea Friday during a hearing where he was considering whether to modify a protective order.

The attorneys representing the Jane Doe plaintiffs had asked for permission to use discovery they obtain in the Harris County MDL in similar litigation they are pursuing in other jurisdictions nationwide. Attorneys representing Salesforce asked the judge to deny the motion, arguing the protective order had been carefully and vigorously negotiated and does not allow the type of information “sharing” the plaintiffs are asking for.

Rather than granting outright the relief sought by either party, Judge Mark Davidson proposed that he make himself available to review in camera any discovery the plaintiffs’ attorneys want to use elsewhere and make case-by-case determinations on the issue. The parties agreed to that framework Friday.

Salesforce is accused of selling its software to Backpage.com — a website that was seized and shut down by the U.S. Department of Justice in April 2018 — which the Jane Does alleges facilitated their sex trafficking.

Of particular focus at Friday’s hearing was a May 16 ruling by U.S. District Judge Andrea R. Wood in the Northern District of Illinois granting Salesforce’s motion to dismiss in a related case before any discovery had taken place.

In part, Judge Wood held that the plaintiffs failed to point to any examples or evidence to back up their contention that Salesforce sold custom-designed software to Backpage to help facilitate sex trafficking, rather than the off-the-shelf software it also sold to customers.

The plaintiffs’ attorneys told Judge Davidson at Friday’s hearing that Salesforce’s attorneys have been submitting Judge Wood’s opinion in other courts where the company is facing related sex-trafficking cases, while their hands have been tied.

“We can’t even use this [discovery] to bolster our own pleadings,” Bryan O. Blevins Jr. of Provost Umphrey Law Firm said of the protective order’s constraints. “I’m not even talking about getting the document before other courts.”  

Plaintiffs’ attorney Craig M. Sico of Sico Hoelscher Harris told Judge Davidson that he believes some documents obtained in the MDL would “rebut inaccurate representations that caused the judge to draw inaccurate inferences.”

Mike Raiff, a partner at Gibson Dunn & Crutcher who represents Salesforce, pushed back on that argument.

“I feel like I’m being accused of fraud on the court,” he said. “So, I’m a little irritated.”

Raiff said if that’s the allegation, then the matter needs to be brought to Judge Davidson and the parties should “go over it together.”

Blevins later clarified he wasn’t accusing Salesforce’s attorneys of committing fraud on the Illinois court.

“I’m not saying it’s fraud,” he said. “I’m just saying it’s a different picture than what’s been presented.”

The first amended petition, filed by the Jane Doe plaintiffs June 17, names as defendants Salesforce.com Inc., G6 Hospitality LLC which owns the Motel 6 brand, and various Motel 6 franchisees.

According to court records, Salesforce asked the Texas Judicial Panel on Multidistrict Litigation to transfer the cases to an MDL court for pretrial rulings in November 2019, and the panel did so in May 2020.

Gibson Dunn partner Collin Cox also represented Salesforce during Friday’s hearing.

Plaintiffs’ attorney Annie McAdams of Annie McAdams PC also participated in Friday’s hearing.

The master file in the Jane Doe multidistrict litigation is cause number 2020-28545.

Michelle Casady

Michelle Casady is based in Houston and covers litigation and appeals — including trials, breaking news and industry trends — for The Texas Lawbook.

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