The US government has been warned about its tone and evasiveness in a long-running suit against Oracle, with a judge describing the manner in which it tried to file another complaint in the case as "troubling".
Despite this admonishment, administrative law judge Richard Clark last week granted the Department of Labor conditional leave to file the complaint, while emphasising that government lawyers should be more interested in adhering to the law than winning the case.
The Office of Federal Contract Compliance Programs (OFCCP) has been pursuing Oracle over what it alleges is discriminatory hiring and pay rates since 2017, when it filed a complaint based on a survey of pay rates in 2013-14.
The latest filing, OFCCP said, "narrows and clarifies" the original complaint, providing a "more direct path" for the case to follow. Oracle countered that they were "entirely new" claims that had been submitted in bad faith after the OFCCP realised its first was "doomed to fail".
'Disingenuous' to conceal an impending amendment
The situation is complicated because most of the past year in the case has seen OFCCP and Oracle (supposedly) engaging in mediation, a process that came to an end in January – at which point the OFCCP announced it was filing the second amended complaint.
However, according to Clark's ruling, published by Law.com, the OFCCP only announced its intention to file this complaint during a case conference call for the judge and the parties involved. The government then "categorically refused" to provide the complaint to Oracle before filing, which the judge said was "out of line with ordinary practice".
Clark also took issue with the fact the OFCCP had been "concurrently sharpening and revising its claims" while engaging in mediation, meaning it had scheduled a hearing "knowing full well that it was on the verge of filing an amended complaint".
"Since the claims at issue in the operative complaint affect discovery, hearing preparation, etc., concealing an impending amendment to the operative complaint rendered the meet and confer disingenuous," he said.
In addition, the OFCCP was unable to give a "plain, non-evasive response" when the judge asked why it hadn't extended this "simple, normal courtesy" to Oracle.
Although the OFCCP wasn't required to be more straightforward or transparent, Clark observed that "those who engage in 'sharp' litigation tactics reasonably object when accused of lack of a transparency and professional courtesy".
Similarly, the judge said it was "very concerning" the OFCCP seemed "unwilling to take a straightforward position" on a question of whether it had published material that Oracle said should have been confidential, and subject to a protective order.
"Even if OFCCP is correct that Oracle shouldn't have designated the material as confidential and has released similar information, the point would remain that OFCCP may have disregarded a mutual agreement in order to gain tactical advantage, which could be problematic."
'Extended introduction of questionable relevance'
Clark also criticised the tone and the content of the second amended complaint, saying the first three pages "do not read like a court filing that one would expect from a government agency". Rather than being a simple introductory statement it was an "extended introduction of questionable relevance".
Moreover, he appeared to raise an eyebrow at the OFCCP's argument that it had not been able to file a more detailed complaint before this year because it had only now got its hands on the data required to refine the allegations.
"This rings somewhat hollow," he said. "OFCCP is not a private litigant that must rely on the discovery process to gather information. It has significant powers to procure information as part of its investigation, which is followed by conciliation, and then litigation, if necessary."
None of these were sufficient for Clark to deny the government's motion to file the complaint, and he noted he had no special control over the OFCCP – but said that both sides should "be cognizant of the tone and manner in which they pursue their argument".
"I expect all parties and attorneys who practise before me to behave in a professional, courteous manner and avoid unnecessary and contentious litigation strategies that are often mistaken for zealous advocacy," he said.
"I remind the government particularly that, 'Counsel for the government has an interest only in the law being observed, not in victory or defeat in any particular litigation.'"
Clark also expressed frustration about the amount of time the case had been pending and the fact both parties had pushed for the hearing to be delayed, even when it was a full 10 months away, meaning the timeline has pushed into 2020.
"OFCCP has made very serious allegations that, if true, merit very serious remedies," he said. "If those allegations cannot be substantiated, Oracle deserves to be able to clear its name and move on. If those allegations can be substantiated, the individuals harmed by the violations deserve relief.
"It is time to move this case forward to resolution, one way or the other. I expect both parties to cooperate in discovery and to disclose their claims, contentions, and evidentiary basis for them." ®