RULING ON DEFENDANTS' MOTION TO STRIKE CLASS ACTION ALLEGATIONS AND OTHER PORTIONS OF THE COMPLAINT

PETER DORSEY, Senior District Judge

Plaintiff Lorene F. Schaefer, Esq., an employee of General Electric Company ("GE"), brings this Title VII sex discrimination action in her individual capacity and on behalf of a class of similarly-situated female executive employees and female attorneys against GE and against individual GE officers and directors Jeffrey R. Immelt, Brackett B. Denniston III, John G. Rice, John M. Dineen, John F. Lynch, John Loomis, Greg Capito, Claudio X. Gonzalez, Andrea Jung, Ralph S. Larsen, Sam Nunn, and Douglas A. Warner III. Defendant GE has moved to strike Plaintiff's class action allegations and to strike Paragraphs 2, 3, 14, 23, 25, 27, 73, 77, 88, and 92 of the Complaint. For the reasons that follow, Defendant's Motion to Strike [Doc. No. 9] is denied.

I. BACKGROUND

Plaintiff Schaefer has been employed as in-house counsel for one of GE's businesses since 1994. (Affidavit of Lorene Schaefer ("Schaefer Aff.") ¶ 1.) From 1994 through 1997, Ms. Schaefer was Business Counsel in the Litigation Group at GE's Aircraft Engines business, working on a variety of matters including commercial contractual disputes, intellectual property disputes, and employment disputes. (Id. ¶ 9.) In December 1997, Ms. Schaefer was promoted to Business Senior Counsel of Employment and Labor Relations in GE's Medical Systems business. In that role, she provided day-to-day labor and employment counsel as well as business advice to the Medical Systems managerial team. (Id. ¶ 10.) In January 1999, Ms. Schaefer took on the additional responsibilities of handling the Medical Systems business's commercial disputes and litigation. (Id. ¶ 11.) In June of that year, she accepted a position as Employment and Labor Relations Business Counsel for GE's Power Systems business, and in September 2001 she was named Business Senior Counsel for that business. (Id. ¶¶ 12, 13.) In May 2005, she was named Business General Counsel of GE's Transportation business (then known as GE Rail), a position in which she reported directly to the CEO of the Transportation business and provided legal counsel and business advice to the CEO and business leaders. (Id. ¶¶ 14, 15.) In April 2007, Schaefer was notified that GE decided to remove her from her role as General Counsel, and on May 10, 2007, GE placed her on administrative leave. (Id. ¶¶ 17, 18.)

In all of her years climbing the ranks of GE management, Ms. Schaefer was never promoted to the Senior Executive Band compensation level, despite the fact that male employees who previously held her positions had been promoted to that level. (Schaefer Aff. ¶¶ 11-14.) On May 31, 2007, Schaefer filed this Title VII gender discrimination lawsuit in her individual capacity and on behalf of a class of more than 1000 similarly situated women at GE, alleging that GE has engaged in systematic, company-wide discriminatory treatment of its female Executive Band employees and female attorneys. (Compl. ¶ 1.) Relying on statistical data made publicly available by GE, the Complaint alleges that there is a disproportionately small percentage of female Senior Executive Band employees (id. ¶¶ 19, 20), and that, as a result of Defendants' pattern and practice of intentional gender discrimination, GE denies female Executive Band employees the same pay and perquisites afforded other male executives at the same level, denies female employees at the Executive Band level promotions that were awarded to similarly-situated male employees, and fails to pay and promote female attorneys at the same rates as male attorneys. (Id. ¶ 6; see also ¶ 9 for data regarding female attorneys' executive compensation levels.)

If not derived from public information, Schaefer's allegations are based on non-confidential and non-privileged information. (See Compl. at 1 (stating that all of her allegations are "[b]ased upon non-confidential and non-privileged information and upon knowledge as to herself and her own acts, and otherwise upon information and belief"); Schaefer Aff. ¶ 4.) Throughout her tenure at GE, Ms. Schaefer had numerous, non-privileged discussions with other GE employees in which they discussed the different performance and overall ranking standards that were applied to GE female employees who aspired to be promoted to upper-level management positions. These discussions took place at informal events of the GE Women's Network, at formal and informal meetings of GE employees, during mentoring discussions, during business trips, and in hallway conversations. (Schaefer Aff. ¶¶ 40-42.) Schaefer acknowledges that in her capacity as General Counsel, she had access to confidential and privileged employment information (id. ¶ 23), and she sat through a 15-minute presentation to the Corporate Executive Council regarding the `lessons learned' from a race discrimination class action lawsuit against GE, Thomas v. General Electric Company. (Id. ¶ 23.) Schaefer avers that the presentation did not include a detailed review of the underlying facts, GE statistics, or GE strategy in defending the Thomas lawsuit, and that her involvement in the case was peripheral. (Id.; see also Schaefer Sur-Reply Aff. ¶¶ 4, 6.) At no point during her 13 years at GE did Schaefer work on a company-wide discrimination class action of any sort, gender or otherwise. (Schaefer Aff. ¶ 19; Schaefer Sur-Reply Aff. ¶ 3.) However, Defendant GE now moves to strike Plaintiff's class allegations from the Complaint on the basis that in bringing this class action, Schaefer has violated her ethical duties as an attorney and that as in-house counsel to GE she is barred from serving as class representative.

GE has also moved for an order that Schaefer must return all company property to GE. Plaintiff avers that, at GE's direction, she has already returned her company laptop, her Blackberry, all computer related equipment, and the original copies of all GE documents, except for her personal benefits materials and performance-related materials. (Id. ¶ 17.) She concedes that she retained copies of certain GE documents, which she is prepared to submit to this Court under seal, in anticipation of rebutting false testimony against her. (Id. ¶ 29.)

II. DISCUSSION

A. Striking Plaintiff's Class Allegations Would Be Premature

In briefing GE's motion to strike the class allegations from the Complaint, both parties have presented testimony by expert witnesses discussing the relevant legal ethics questions, in particular the propriety of an attorney's serving as lead plaintiff in a class action lawsuit. The parties' briefs have also raised disputed issues of fact as to Plaintiff's conduct during her employment at GE and the source of her knowledge underlying the allegations in the Complaint. Specifically, there appear to be factual disputes on the record regarding: (1) whether the Complaint is based on non-confidential information; (2) whether Ms. Schaefer has improperly disclosed confidential information; (3) whether legal advice given by Ms. Schaefer to GE in the past is "substantially related" to the instant matter; (4) whether Ms. Schaefer changed certain legal advice regarding an employment matter to support her personal claims of gender discrimination; and (5) whether a protective order will protect GE's reasonable confidentiality expectations. Affidavits submitted by Ms. Schaefer and by Mark Nordstrom, GE's Senior Counsel for Labor and Employment, directly contradict each other in their descriptions of Ms. Schaefer's conduct. (Compare, e.g., Affidavit of Mark Nordstrom ("Nordstrom Aff.") ¶ 11 and Schaefer Aff. ¶¶ 25, 28, 30.)

As a general matter, to the extent that the facts underlying the allegations in the Complaint or the issues raised in this motion are in dispute, it is inappropriate for the Court to resolve such questions at this time. Some of these factual discrepancies do not even relate to the legal question presented in the motion to strike. The veracity of Mr. Nordstrom's charge that Ms. Schaefer changed her legal advice to GE in order to bolster her claims in this lawsuit is not necessary for the Court to determine in order to decide the permissibility of Schaefer's class allegations.

Other factual disputes raised by GE's motion, in particular the central question as to whether Schaefer has inappropriately used confidential client information to develop her claims, are not properly before the Court at this time. Rule 12(f) of the Federal Rules of Civil Procedure provides that, upon motion, a court may strike "any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter" from a pleading. However, "[d]espite the rule's clear terms, the Second Circuit has set a high standard for its application, cautioning that `courts should not tamper with the pleadings unless there is a strong reason for doing so.'" Yungk v. Campbell Hausfeld/Scott Fetzer Co., Nos. 3:06CV120 (AVC), 3:07CV111 (AVC), 2007 WL 2100114, at *2 (D. Conn. July 17, 2007) (quoting Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976)); see also Harris v. United Tech. Corp., 241 F.R.D. 95, 99 (D. Conn. 2007) ("Rule 12(f) motions to strike are disfavored."); 5C CHARLES A. WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE PROCEDURE § 1380 (3d ed. 2007). In considering a motion to strike, the court does not examine the merits of the action, but merely determines whether any matter contained in the pleading itself was improperly included. Taylor v. United Tech. Corp., No. 3:06CV1494 (WWE), 2007 WL 2302284, at *5 (D. Conn. Aug. 9, 2007). "[T]he Second Circuit has cautioned that a Rule 12(f) motion should not be granted `unless it can be shown that no evidence in support of the allegation would be admissible[.]'" Harris, 241 F.R.D. at 99 (quoting Lipsky, 551 F.2d at 893). Because pleadings are to be construed liberally, motions to strike are generally not favored and will be granted only upon a showing that the allegations in question have no possible bearing on the subject matter of the litigation. Taylor, 2007 WL 2302284, at *5 (quoting Schramm v. Krischell, 84 F.R.D. 294, 299 (D. Conn. 1979)); see also Norwalk Cove Marina, Inc. v. S/V Odysseus, 90 F. Supp. 2d 190, 194 (D. Conn. 2000). Rule 12(f) motions are particularly disfavored with respect to class allegations in employment discrimination suits. San Bernardino Public Employees Ass'n v. Stout, 946 F. Supp. 790, 803 (C.D. Cal. 1996) (citing Naton v. Bank of California, 72 F.R.D. 550, 551 n. 4 (N.D. Cal. 1976)).

Given the strict standard for a motion to strike, issues of fact preclude the Court from determining at this point in the proceedings whether Plaintiff Schaefer is an adequate class representative. Despite its artful legal arguments, GE has made no showing beyond its conclusory allegations that Plaintiff has disclosed any client confidences or impermissibly based her claims on confidential client information. The Complaint and Ms. Schaefer's affidavits assert that her allegations are based either on publicly available information, on information and belief, or on personal experience and personal knowledge, gathered from non-privileged, non-confidential conversations Ms. Schaefer had with other employees, and not on privileged communications or other confidential information derived from her representation of GE. (See, e.g., Compl. at 1; Schaeffer Aff. ¶¶ 38, 40.) The absence of any affirmative showing by Defendants of Schaefer's use of confidential information, distinct from her generally observable personal experiences with other employees, precludes a finding that Ms. Schaefer has already violated any client confidences.

Moreover, it is premature for the Court to make any factual determination about the evidence Ms. Schaefer will offer and whether it will betray any client confidences. See Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173, 181 (3d Cir. 1997) ("It is premature at this stage of the litigation to determine the range of the evidence [plaintiff] will offer and whether or how it will implicate the attorney-client privilege.") Unless the Court makes a series of assumptions about the evidence that Schaefer is likely to use in the future, it is not clear that her relying on informal statements made to her by co-workers or any other facts regarding her own employment experience and prospects at GE would violate her client confidences. Id. (citing Breckinridge v. Bristol-Myers Co., 624 F. Supp. 79, 82 (S.D. Ind. 1985)). Most importantly, it would be drastic and improper to strike the Complaint's class action allegations now, before Plaintiff moves for class certification pursuant to Rule 23, and thereby flatly deny the assertion of Ms. Schaefer and her 1000 female colleagues' rights without discovery as to these factual issues.

GE argues that the ethical considerations implicated by Schaefer's assertion of class allegations are so important that they must be resolved as early as possible in the litigation. However, no legal precedent persuades the Court that it must make a final determination on these factual issues at this time. The cases cited by Defendant in support of its argument are inapposite. In Forbes v. NAMS International, Inc., No. 3:07CV0039 (TJM/DEP), 2007 WL 1814656, at *1 (N.D.N.Y. June 21, 2007), for example, the court disqualified an attorney from representing a party adverse to his former corporate client. Id. at *3-4. TheForbes situation may be distinguished from the case at hand, where Attorney Schaefer does not represent a party adverse to her former client but rather asserts her own rights as a plaintiff. Disqualifying an attorney who had "switched sides" by representing a plaintiff adverse to her former client at the very beginning of a litigation is a different matter than making a premature factual determination that a plaintiff is violating her ethical obligations as an attorney by asserting a particular series of allegations in a class action discrimination claim. Accordingly, the cases cited by Defendant have no bearing on the question presently before this Court. See also Miroglio, S.P.A. v. Morgan Fabrics Corp., 340 F. Supp. 2d 510, 512 (S.D.N.Y. 2004) (same); Prisco v. Westgate Entertainment, Inc., 799 F. Supp. 266, 269-71 (D. Conn. 1992) (disqualifying an attorney from representing limited partners suing general partner where the attorney was previously general counsel for the partnership); Butterworth v. Citicorp Mortgage, Inc., No. 3:00CV413 (CFD), 2000 WL 1901314, at *1-2 (D. Conn. Dec. 20, 2000), aff'd, 33 F. App'x 18, 2002 WL 737650 (2d Cir. 2002) (disqualifying an attorney from representing plaintiffs in a matter where the attorney was likely to be called as a witness).

Furthermore, Plaintiff's Complaint asserts a disparate impact gender discrimination claim which will be proven by the use of statistical information, not personal information, making it even less likely that Ms. Schaefer is relying on confidential client information to assert her claims. (See Miller Aff. ¶¶ 22-25.) When a plaintiff raises a pattern or practice discrimination claim, the focus of the inquiry is on a pattern of discriminatory decisionmaking, not an individual employment decision. See Gulino v. New York State Educ. Dep't, 460 F.3d 361, 382 (2d Cir. 2006). (See also Rhode Aff. ¶ 75.) The plaintiff employee can thus prove a pattern or practice claim through a combination of statistical and anecdotal evidence. Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 158 (2d Cir. 2001) ("`Plaintiffs have typically depended upon two kinds of circumstantial evidence to establish the existence of a policy, pattern, or practice of intentional discrimination: (1) statistical evidence aimed at establishing the defendant's past treatment of the protected group, and (2) testimony from protected class members detailing specific instances of discrimination.'" (quoting 1 ARTHUR LARSON ET AL., EMPLOYMENT DISCRIMINATION § 9.03[1], at 9-18 (2d ed. 2001))). See also 42 U.S.C. § 2000e-2(k); Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 338-40, 97 S. Ct. 1843 (1977); New York City Trans. Auth. v. Beazer, 440 U.S. 568, 584, 99 S. Ct. 1355 (1979); Malave v. Potter, 320 F.3d 321, 325-26 (2d Cir. 2003). "Systemic disparate treatment" evidence "relies upon statistical proof of significant disparities between the actual and expected representation of the protect class in one or more levels of an employer's workforce," and system-wide disparate treatment is "reflected by a significant workforce underrepresentation of plaintiff's group relative to the frequency one would expect of a group-members' qualifications and abilities." (Miller Aff. ¶ 22 (citing LEWIS NORMAN, EMPLOYMENT DISCRIMINATION LAW AND PRACTICE, § 3.20 p. 230-31 (2d ed. 2004)).See also 2 WEINSTEIN'S FEDERAL EVIDENCE § 401.08[11] at 401-74 (2d ed. 2007) ("where discriminatory treatment in an individual case or a pattern or practice of discrimination is alleged, both of which require proof of wrongful intent, statistics showing an imbalance in the workforce are probative on the issue of intent, and, where gross statistical disparities can be shown, statistics alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination."); Robinson, 267 F.3d at 158 n. 5 (noting the "heavy reliance on statistical evidence in a pattern-or-practice disparate impact claim"). Accordingly, to develop her disparate impact claim, Ms. Schaefer intends to rely on non-confidential information, such as a statistical comparison of the number of men and women occupying executive positions at GE, to demonstrate the alleged disparities between the effect of GE's pay and promotion policies on women, as well as non-confidential anecdotal testimony that GE was biased against female employees. (Schaefer Aff. ¶¶ 4, 5, 38; Rhode Aff. ¶ 91; Miller ¶ 25.) Any statistical information may be obtained from publicly available filings GE has made with state and federal equal employment agencies or through the formal channels of the discovery process, and other corroborating evidence may be obtained from class members as they join the case. (Rhode Aff. ¶ 91; Miller Aff. ¶ 25.) Otherwise, Ms. Schaefer relies on information relating to her personal experiences as a female employee, not as a lawyer, and as a participant in the Women's Network. Therefore, none of the evidence that Ms. Schaefer is likely to use to establish her disparate impact claim would reveal confidential information. (See Rhode Aff. ¶¶ 48, 91.)

There is also no reason to conclude that by bringing a class action Ms. Schaefer will reveal more client confidences than is necessary to establish her individual claim. (See Miller Aff. ¶ 26.) As class representative, Ms. Schaefer will not have any obligation to share confidential information with the class. (See Miller Aff. ¶¶ 28-30; Rhode Aff. ¶¶ 47-48.) Rule 23 of the Federal Rules of Civil Procedure requires only that a class representative "fairly and adequately protect[s] the interests of the class." FED. R. CIV. P. 23(a)(4). A class plaintiff thus fulfills her duties to the class members by keeping herself generally informed about the basics of the lawsuit and assuring that class counsel does not harm the interests of the class. See Central States S.E. S.W. Areas Health Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 245 (2d Cir. 2007) (citing In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 142 (2d Cir. 2001) (a class representative does not fairly protect the class interests if the plaintiff's interests are antagonistic to the interest of other members of the class). (See also Miller Aff. ¶ 29.) Reserving the question of the adequacy of Ms. Schaefer's representation of the class for later review of a class certification motion, the Court simply notes at this time that there is no apparent basis for concluding that as class representative Ms. Schaefer will necessarily reveal confidential information to other class members.

In sum, GE's motion to strike includes several assumptions and premature conclusions about the factual basis for Schaefer's class allegations. The Court finds it improper to take such assumptions at face value and inappropriate to make a factual determination based on the limited record at this stage in the litigation. For this reason alone, GE's motion should be denied.

B. Legal Ethics Rules Do Not Bar Plaintiff's Class Claims

Factual disputes aside, the legal issues presented by GE's motion to strike also do not dictate striking Plaintiff's class action allegations at this time. The central premise of Defendant GE's motion is that, by asserting claims on behalf of her GE colleagues, Ms. Schaeffer is betraying her duty of loyalty and her obligation to protect her client's confidences as broadly defined by the American Bar Association's Model Rules of Professional Conduct (the "Model Rules"), a version of which Connecticut has adopted. See O'Brien v. Stolt-Nielsen Transp. Group, Ltd., 48 Conn. Supp. 200, 213 (Conn.Super. 2003). In particular, GE contends that Model Rule 1.6 and the relevant case law foreclose Schaefer from bringing discrimination claims on behalf of others in a purported class action.

The Model Rules prohibit an attorney from revealing any information related to the representation of a client without the client's informed consent. See MODEL RULES OF PROF'L CONDUCT R. 1.6(a) (2007). However, the Model Rules also provide that a lawyer may reveal information relating to the representation of the client to the extent that the lawyer "reasoanbly believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client." MODEL R. 1.6(b)(5). According to Professor Rhode, in adopting the Model rules, the American Bar Association ("ABA") expanded the "claim or defense" exception to the duty of confidentiality, which had previously been expressly limited to fee disputes and defense against accusations of wrongful conduct under Disciplinary Rule 4-101(c)(4) of the Model Code of Professional Resp. (the "Model Code"), the ABA's predecessor to the Model Rules. (See Rhode Aff. ¶ 29.) The claims exception to the Model Rules "enlarges the exception to include disclosure of information relating to claims by the lawyer other than for the lawyer's fee." Heckman v. Zurich Holding Co. of Amer., 242 F.R.D. 606, 611, 2007 WL 1347753, at *5 (D. Kan. May 8, 2007) (citing ANNOT. MODEL RULES OF PROF'L CONDUCT, Rule 1.6, Model Code Comparison 68 (4th ed. 1999)); see also ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 424 (2001) (stating that the term "claim" is not defined by the Model Rules but that they enlarged the claim or defense exception of the predecessor Model Code). The plain language of Model Rule 1.6 is quite broad, allowing a lawyer to use the "claim or defense" exception in "a controversy between the lawyer and the client." MODEL R. 1.6(b)(5). Professor Rhode states in her affidavit that an in-house lawyer's Title VII disparate treatment and disparate impact class action falls within the expansive category of "a controversy between the lawyer and the client." (Rhode Aff. ¶ 30.)

A lawyer's duties of confidentiality and loyalty are therefore not absolute or impermeable. As GE's expert Professor Geoffrey Hazard wrote in a legal ethics treatise, "[T]he generalization that a lawyer has an unqualified duty of confidentiality to a client is simply incorrect in most contexts. Indeed, the generalization is essentially accurate only when the representation involves defense of a criminal accused. In most transactional representations, the generalization is seriously misleading." G. HAZARD, JR. W. HODES, THE LAW OF LAWYERING: A HANDBOOK OF THE MODEL RULES OF PROF'L CONDUCT § 1.6:201-1, at 168.41 (2d ed. 1992). The Second Circuit advised thirty years ago that "[i]t is a longstanding rule that, `[w]hen dealing with ethical principles, . . . we cannot paint with broad strokes. The lines are fine and must be so marked. . . . [T]he conclusion in a particular case can be reached only after painstaking analysis of the facts and precise application of precedent." Fund of Funds, Ltd. v. Arthur Andersen Co., 567 F.2d 225, 227 (2d Cir. 1977) (citations omitted). See also RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 5 cmt. c (2000) ("[T]he breadth [of catch-all provisions] creates the risk that a charge using only such language would fail to give fair warning of the nature of the charges to a lawyer respondent . . . and that subjective and idiosyncratic considerations could influence a hearing panel or reviewing court in resolving a charge based only on it. . . . Tribunals accordingly should be circumspect in avoiding overbroad readings or resorting to standards other than those fairly encompassed within an applicable lawyer code.") (citations omitted).

There is no question that an in-house counsel may reveal client confidences to the extent necessary to bring a wrongful discharge or other employment discrimination claim on her own behalf. Defendant GE concedes as much (see Def.'s Mem. Mot. Strike 2, 10, 15), and ample case law supports this contention. In Fox Searchlight Pictures, Inc. v. Paladino, 89 Cal. App. 4th (Cal.App. 2001), for example, the California Court of Appeals held that an in-house counsel suing her former employer may disclose to her attorney all facts relevant to her employment claim, even if such disclosure includes divulging employer confidences and privileged communications. Id. at 309-14. The court recognized that "an in-house counsel is an employee and entitled to the same legal protections afforded all employees, including the right not to be discriminated against[.]" Id. at 309. "Once an adversarial relationship develops between a lawyer and her former client, the lawyer must be permitted `to meet the client on even terms, and not be rendered helpless by the client's self-interested version of the facts.'" Id. at 314 (quoting 1 HAZARD HODES, THE LAW OF LAWYERING § 1.6:305 at 176). Although Fox Searchlight was not a class action, Professor Rhode concludes that the same principles apply when allegations of class-wide practices are necessary to prove violations of employment discrimination statutes. (Rhode Aff. ¶ 62.)

GE and its expert witnesses try to create an ethical distinction between Schaefer's bringing claims on her own behalf and serving as class representative in a discrimination class action, but the Model Rules do not support such a distinction. Rule 1.6(b) limits a lawyer from revealing more confidential information than is reasonably necessary to support of her claim. MODEL R. 1.6(b)(5). In support of GE's position, Professor Rotunda contends that Ms. Schaefer is thereby prohibited from pursuing a class action because she will "inevitably" reveal more client confidences than is necessary to pursue her own claim. (Rotunda Aff. ¶ 20.) However, the word "necessary" does not inherently qualify or restrict the type or category of action that a lawyer may bring, whether it is an individual employment discrimination claim, a wrongful termination suit, or a class action. See MODEL R. 1.6(b). (See also Rhode Aff. ¶ 51.) GE also explains that Rule 1.6 attempts to strike a balance between the desire to allow lawyers wronged by a client to assert a claim and the need to further the critical policies served by the attorney-client privilege (Def.'s Reply 7); accordingly, GE asserts, the Rule allows a lawyer to bring a claim on her own behalf but not on behalf of others. However, even if the drafters of the Model Rules intended to strike such a balance, achieving such a balance does not necessarily require precluding an in-house lawyer from serving as a class representative. Nothing in the Model Rules, the Connecticut Rules, or the comments to either set of rules states that the balance struck by Rule 1.6 has anything to do with class actions.See MODEL R. 1.6, cmt. (See also Rhode Sur-Reply Decl. ¶ 4 ("I agree that Model Rule 1.6 attempts to `strike a balance' between the need to protect client confidences and the need to permit attorneys to pursue their claims. I do not agree, however, that this balance precludes an attorney who is wronged by her employer from pursuing her claims on behalf of both herself and others similarly situated. This restriction is not present in the Model Rules, the Connecticut Rules, or the comments to either set of Rules.").) Moreover, the same principles that underlie an attorney's ability to sue her employer in her individual capacity provide a foundation to assert Title VII class claims. (See Rhode Aff. ¶ 62.) As Professor Arthur Miller states in his affidavit, "no reasoned distinction exists that allows an employee-attorney to bring an individual Title VII claim for gender discrimination but simultaneously bars her from prosecuting those claims on behalf of a class of similarly situated female employees." (Miller Aff. ¶ 21.)

GE also argues that the responsibilities of a class representative will inevitably cause Schaefer to violate Model Rule 1.6 because, as class representative under Rule 23 of the Federal Rules of Civil Procedure, Schaefer will necessarily disclose confidential information to class members, devise strategy, and assist in drafting discovery requests. (See Hazard Aff. ¶ 3 ("the Plaintiff if acting as class representative is bringing claims on behalf of others and will unavoidably `use' former client confidences and, with substantially equal probability, `reveal' them."), ¶ 8.) However, GE overstates the role that Ms. Schaefer must play as class representative and fails to convince the Court that Schaefer's limited role will obligate her to reveal client confidences. (See Miller Aff. ¶ 30.) Rule 23 places prime responsibility on class counsel, not on the class representative, to litigate the action and vindicate the rights of the class. A class representative has a duty to have enough knowledge of and involvement in the class action so as to protect the interests of the class against the possibly competing interests of the attorneys, see Maywalt v. Parker Parsley Petroleum Co., 67 F.3d 1072, 1077-78 (2d Cir. 1995); 7A FEDERAL PRACTICE PROCEDURE §§ 1765, 1767, but she is neither obligated nor expected to have an in-depth grasp of the legal theories behind the case. In re Resource Am. Sec. litig., 202 F.R.D. 177, 187 (E.D. Pa. 2001) (citations omitted); see also Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 371-73, 86 S. Ct. 845 (1966); Fogarazzao v. Lehman Bros., Inc., 232 F.R.D. 176, 181 (S.D.N.Y. 2005) ("a plaintiff need not have expert knowledge of all aspects of the case to qualify as a class representative, and a great deal of reliance upon the expertise of counsel is to be expected.") (internal citations omitted). Rather, a class plaintiff fulfills her duties to the class members by keeping herself generally informed about the basics of the lawsuit and assuring that class counsel does not harm the interests of the class. (Miller Aff. ¶ 29.) Accordingly, there is no basis to conclude that Schaefer will be obligated to share confidential information with the class (see Miller Aff. ¶¶ 28-30; Rhode Aff. ¶¶ 47-48) or that serving as class representative will thereby further infringe upon her ethical obligations under Rule 1.6 any more than would proceeding as a plaintiff in an individual discrimination claim.

Legal precedent support Plaintiff's position that Model Rule 1.6 allows an attorney to serve as a class representative. Courts have recognized that in-house lawyers may serve as class representatives even under the Model Code, which had a much more limited claims exception to confidentiality than does current Rule 1.6(b)(5). In Cutner v. Atlantic Richfield Co., Civ. No. 77-806, 1979 WL 209, at *1 (E.D. Pa. April 9, 1979), the district court allowed an in-house lawyer to serve as a class representative on behalf of a class of female attorneys in a Title VII class action against the defendant employer. Deciding the case under the Model Code, the court wrote that the defendant should not be "rendered immune from class prosecution of these claims merely because the affected employees are lawyers." Id. at *3. The court instead deemed it "necessary to attempt to draw a line between the attorney-client relationship and the employee-employer relationship, between what plaintiff may have had access to as a lawyer, and what she may have learned as a function of the employment relationship." Id. Similarly, inJurgens v. Norton, Civ. No. CA-3-76-1183-G, 1978 WL 68, at *1 (N.D. Tex. May 22, 1978), aff'd, Jurgens v. EEOC, 903 F.2d 386 (5th Cir. 1990), the district court certified a class of attorney and non-attorney EEOC employees in an employment discrimination case brought by one of the EEOC's lawyers. The court had "no hesitation in finding Jurgens to be an adequate representative," in part because "there appear[ed] to be no basis for any suggestion of inadequacy of representation." Id. at *3.

In contrast, the case law relied upon by GE to establish a distinction between an individual and a class action discrimination claim does not apply to Ms. Schaefer's case. The only case cited by Professor Rotunda in support of his opinion that Ms. Schaefer may not serve as class representative is Hull v. Celanese Corp., 513 F.2d 568 (2d Cir. 1975), in which the issue was "whether a law firm can take on, as a client, a lawyer for the opposing party in the very litigation against the opposing party." Id. at 569. An in-house attorney at Celanese Corporation had actively participated in the defense of the action she then sought to join as a plaintiff. Because the attorney had switched sides in the very same action, the Second Circuit found a presumption of a breach of confidentiality. Id. at 572. Contrary to the facts in Hull, however, Ms. Schaefer, who is currently on administrative leave from GE, has not in any way assisted GE in its legal defense of the present discrimination action, nor was she ever privy to GE's confidences in this matter. (Schaefer Sur-Reply Aff. ¶ 3; Rhode Aff. ¶ 55.) Cf. Hull, 513 F.2d at 571 ("here the matter at issue is not merely `substantially related' to the previous representation, rather, it is exactly the same litigation." (emphasis added)). Hull therefore has no bearing on whether Ms. Schaefer may serve as class plaintiff. See id. at 572 ("This decision should not be read to imply that either [plaintiff] cannot pursue her claim of employment discrimination based on sex. The scope of this opinion must, of necessity, be confined to the facts presented and not read as a broad-brush approach to disqualification."); Religious Tech. Ctr. v. F.A.C.T. Net, Inc., 945 F. Supp. 1470, 1478 (D. Colo. 1996) (noting thatHull is to be read narrowly); Neal v. Health Net, Inc., 123 Cal. Rptr. 2d 202, 214 (Cal.App. 2002) ("By its very terms, Hull is not to be extended beyond the facts in that case, which involved an in-house counsel, Ms. Hull, who worked on the lawsuit in which she sought to intervene. . . ."). Other cases relied on by GE disqualified former in-house attorneys who had actively participated in the pending matter from switching sides and becoming class representatives. See, e.g., Doe v. A Corp., 709 F.2d 1043, 1045 (5th Cir. 1983) (disqualifying former in-house attorney class representative from challenging a benefits plan where he had "made daily decisions concerning the rights of individual employees and the acceptability of their beneficiary designations, gave the plan administrators legal advice, and worked with other lawyers in drafting" the very same plan); Ercklentz v. Inverness Mgmt. Corp., No. 7167, 1984 WL 8251, at *4 (Del.Ch. Oct. 18, 1984) (former general counsel and board member for defendant corporation was disqualified from being class representative because as general counsel he had been actively involved in the transactions that gave rise to the lawsuit). Finally, GE relies on several cases which present a different legal question altogether, that is, whether there were grounds for disqualification of class counsel, not whether she made an adequate class representative, where that attorney had previously acquired confidential information from the defendant.See Ullrich v. Hearst Corp., 809 F. Supp. 229 (S.D.N.Y. 1992) (disqualified attorney sought to represent three individual plaintiffs in a suit against a former client); Pastor v. Trans World Airlines, Inc., 951 F. Supp. 28 (E.D.N.Y. 1996) (disqualified attorney barred from representing plaintiff in discrimination suit against attorney's former employer); Housler First Nat'l Bank of East Islip, 484 F. Supp. 1321 (E.D.N.Y. 1980) (disqualified attorney barred from associating with plaintiff's claims). While these cases address the ethics of an attorney's representation of clients with competing interests, or an attorney's switching sides in a single action, they do not pertain to the matter before this Court, where Ms. Schaefer's individual rights are at stake in a matter on which she did not work while representing GE.

Furthermore, as GE experts Professors Rotunda and Hazard have acknowledged, the application of Rule 1.6 depends not only on the type of client information provided but also on the context in which the information was provided. Professor Hazard has written that Model Rule 1.6(a) must be given a somewhat qualified construction because "read literally and in isolation, [Rule 1.6] is so stringent as to approach the unworkable and the unrealistic." HAZARD HODES, THE LAW OF LAWYERING § 1.6:201 at 158. GE attempts to argue that every communication by Ms. Schaefer with any current or former GE employee, or any conversation among any GE employee at which Ms. Schaefer was present, would be confidential, no matter the subject of the conversation or its time and place. However, given the facts presented in the case thus far, the Court cannot conclude that information obtained either through Ms. Schaefer's participation in the GE Women's Network or through publicly available statistical information falls within Rule 1.6. Information obtained by Ms. Schaefer at the GE Women's Network meetings was not confidential client information obtained in the course of her representation of GE. GE's own guidelines restricted her ability to communicate with other women at the network events in an official capacity and encouraged the network to conduct meetings during non-working hours. See Pl.'s Sur-Reply Ex. 1, 1997 Guidelines for Network, "Fostering an Inclusive GE Culture: Guidelines for Network Groups at GE" ("Individuals attending network group meetings should be voicing their own opinions and should not in any way be present as a `representative' of the other employees (elected or not) to the Company."). Accordingly, Schaefer did not give legal advice at those meetings; rather, she participated in them as a means of socializing and networking with other female employees. (See Schaefer Sur-Reply Decl. ¶¶ 911.) Such communications therefore cannot be considered client information which must be ruled confidential under Rule 1.6. See Alabama Bar Ass'n, Formal and Informal Op. RO-00 — 1 (2000) ("employee communications are not covered by the confidentiality requirements of Rule 1.6 . . . and may be disclosed or used by the attorney without restriction or limitation."). GE's argument that Model Rule 1.6 bars Attorney Schaefer from asserting class action allegations is thus unconvincing.

GE also invokes Model Rules 1.7 and 1.9 to argue that an attorney's duty of loyalty to her client is broad enough to encompass Schaefer's claims. However, in arguing that Schaefer has breached her duty of loyalty under Model Rule 1.7, GE mischaracterizes the rule, which, by its plain language, applies when an attorney represents a client and seeks to represent another client in an adverse matter. Accordingly, this rule does not apply to the pending matter because Ms. Schaefer is a plaintiff asserting her own rights and does not seek to act as an attorney representing any plaintiffs in this case. As for Model Rule 1.9, there is no question that it provides that an attorney's obligation to keep client information confidential does not end when the attorney stops representing the client. See MODEL RULE 1.9(c). (See also Rotunda Reply Aff. ¶ 2(a).) However, the particular provisions of Rule 1.9 prohibit a "lawyer who has formerly represented a client in a matter" from "represent[ing] another person in the same or a substantially related matter" without the former client's informed consent. Model Rule 1.9(a). Because Ms. Schaefer is not representing a client in this lawsuit, Rule 1.9 does not apply to her case.

Even if Rule 1.9 did apply, it would not bar Plaintiff Schaefer's class action because it is neither the same nor "substantially related" to a prior matter on which Schaefer worked as counsel to GE. Rule 1.9 bars representation of a new client "in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client[.]" MODEL R. 1.9(a). The first prong of this rule bars a situation like the one in Hull, where an attorney attempts to switch sides in the middle of a case. See RONALD D. ROTUNDA JOHN D. DZIENKOWSKI, DESKBOOK ON LEGAL ETHICS § 1.9-1(b)(2) (2007) ("The lawyer, in short, may not switch sides); id. at § 1.9(b)(3) (". . . that particular lawyer cannot now `switch sides' in the same matter and represent Client B [against Client A]." (emphasis in original) (citing MODEL R. 1.9(a) cmts. 1, 2, 8))). As discussed above, the present action is not a case of an attorney's "switching sides." The comments to the Model Rules specifically distinguish Ms. Schaefer's case from a situation in which the lawyer was "directly involved with a specific transaction":

The scope of a `matter' for purposes of this Rule depends on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. . . . . The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.

MODEL R. 1.9, cmt. 2. Although an attorney can switch sides in a specific transaction or matter, an attorney's representation of a party on the same type of case that he handled for a former client does not itself violate the ethics rules.

The second prong of Rule 1.9(a) concerns an attorney involved in a "substantially related" matter, which also does not apply to the facts in this case. Professor Rotunda emphasizes the fact that, through her representation of GE, Ms. Schaefer was entrusted with observations and analyses concerning strategy regarding employment issues and claims. However, this fact does not meet the "substantially related" standard of Rule 1.9. Professor Rotunda's deskbook on professional responsibility recognizes the distinction between pursuing a claim against a former client on a "specific transaction" and a "recurrently handled type of problem." See ROTUNDA, DESKBOOK § 1.9-1(b)(3). "If the matter was a `recurrently handled type of problem,' the lawyer may represent a new client `in a wholly distinct problem of that [general] type even though the subsequent representation involves a position adverse to the prior client." Id. (quoting ABA Comm. on Ethics Prof'l Resp., Formal Op. 409 n. 17 (1997)). To the extent Schaefer worked on individual discrimination claims as in-house counsel to GE, such work entailed a "recurrently handled type of problem," in which case Rule 1.9 is not implicated by her working on a new and wholly distinct gender class action discrimination claim. See also Kansas Bar Ass'n Prof'l Ethics-Advisory Comm., Formal and Informal Op. 11 (1994) (an attorney's "general familiarity . . . with the employer corporation, such as personalities and inner workings of the corporation," is not confidential under Rule 1.6); Indiana State Bar Ass'n Legal Ethics Comm., Formal and Informal Op. 3 (1991) (an attorney's knowledge of the "personalities and negotiating styles" of executives of a corporate client is not privileged information). Similarly, Professor Hazard posits that Schaefer has violated Rule. 19 in part because he assumes that Schaefer will inevitably disclose client confidences because she was `continually' involved in the very type of labor and employment matters implicated in this case. (Hazard Aff. ¶ 8.) But, in addition to the fact that Professor Hazard simply assumes that such revelations are `inevitable,' the very characterization of Schaefer's "continual" involvement in such claims makes her work at GE exactly the kind of "recurrent dealing" which would allow her to proceed under Rule 1.9 with the "wholly distinct problem of the general type" presented by this case. See ROTUNDA, DESKBOOK § 1.9-1(b)(3). This matter is thus not "substantially related" to Schaefer's prior representation of GE to implicate Rule 1.9.

Finally, Ms. Schaefer's work on Thomas v. GE does not disqualify her involvement in this matter because she did not litigate that case. According to her declaration, she did not draft, review, or edit any of the pleading or briefs, and she did not prepare for, participate in, or otherwise observe or supervise the Thomas mediation. (Schaefer Sur-Reply Decl. ¶ 4.) She also never worked on a gender discrimination class action or any other kind of company-wide discrimination class actions while at GE, though she did handle individual gender discrimination claims for the company. (Schaefer Aff. ¶ 21; Schaeffer Sur-Reply Decl. ¶ 3.) Schaefer attests that she has taken every precaution to ensure that she does not reveal any information that she did learn about the Thomas case to her counsel or class members and that she does not intend to communicate this information to them in the future. (Schaefer Sur-Reply Decl. ¶ 6.) GE has thus failed to show that Model Rules 1.7 or 1.8 bar Schaefer's class action claims any more than does Rule 1.6.

For these reasons, the Court cannot conclude at this time that Ms. Schaefer's serving as class representative for a gender discrimination class action violates any of her ethical duties to GE under the Model Rules. While it is not necessary for the Court to conclude definitively whether Title VII trumps an attorney's ethical obligations under the Rules, there is no question, and it bears repeating, that Ms. Schaefer has the full range of rights of an employee under Title VII. Congress did not exclude in-house attorneys from its definition of an employee under Title VII. See 42 U.S.C. § 2000e(f). Title VII does contain other discrete exclusions, such as exemptions for persons elected to public office, their personal staff, and policy-making appointees, and the existence of such exclusions indicates that Congress could have specifically exempted in-house attorneys had it intended to do so. Id. Accordingly, courts have concluded that in-house lawyers are entitled to the protection of their rights as `employees' under Title VII. See Kachmar, 109 F.3d at 179; Cutner, 1979 WL 209, at *2 ("By accepting employment in the defendant's Legal Department, the plaintiff did not waive the protection of . . . Title VII of the Civil Rights Act.").

Moreover, courts and scholars have recognized that an attorney's duty of loyalty to her clients is not unqualified and must be balanced against other equally important concerns such as those policy concerns underlying Title VII. (See Rhode Aff. ¶¶ 86-89.) Courts have recognized that the duties of confidentiality and loyalty do not trump all other legal interests and should be balanced against statutes and exceptions under the Model Rules, including an in-house lawyer's right to assert employment-related claims. See Burkhart v. Semitool, Inc., 5 P.3d 1031, 1041-42 (Mont. 2000); Kachmar, 109 F.3d at 180-82;O'Brien, 48 Conn. Supp. 200 at 210-212. GE has not persuaded the Court that ethical considerations must preclude Schaefer from proceeding with her class action gender discrimination claim at this point in the proceedings.

For all these reasons, the Court rejects GE's position that the Model Rules bar Ms. Schaefer from asserting her class action claims and proceeding as class representative. Striking the class allegations from the Complaint, in addition to being premature at this stage in the proceedings, would not be justified by the ethical standards of the Model Rules. Accordingly, GE's motion to strike the class allegations from Plaintiff's Complaint is denied.

C. GE Has Not Shown that Particular Paragraphs Implicate the Attorney-Client Privilege and Therefore Should Be Stricken

In addition to striking the class allegations of the Complaint, GE requests the Court to strike particular paragraphs of the Complaint (namely Paragraphs 2, 3, 14, 23, 25 (last sentence), 27, 73, 77, 88, and 92) which supposedly disclose privileged attorney-client communications. The only support offered by GE for this argument is a single statement in Mark Nordstrom's affidavit, "I believe that information relating to these matters was shared with Plaintiff in confidence as a member of GE's legal team. . . ." (Nordstrom Aff. ¶ 16.) The party asserting the attorney-client privilege has the burden of establishing all of its elements. In re Horowitz, 482 F.2d 72, 82 (2d Cir. 1973). In the corporate context, the attorney-client privilege applies when: (1) the attorney is acting in a professional capacity for the corporation; (2) the subject matter of the communications relate to legal advice sought by the corporations; and (3) the communications are made in confidence. Uniroyal Chem. Co. v. Syngenta Crop Prot., 224 F.R.D. 53, 55 (D. Conn. 2004) (applying Connecticut law). The attorney-client privilege is "strictly construed because it tends to prevent a full disclosure of the truth in court." Ullmann v. State, 230 Conn. 698, 710 (1994) (internal quotation marks and citations omitted).

GE asserts that the allegations contained in the designated paragraphs all "relate to matters" where Schaefer has "been privy to client confidences" and therefore should be stricken. (Def.'s Mot. to Strike 22.) However, all of the paragraphs to which GE refers contain allegations based upon information and belief, derived from what Ms. Schaefer learned through informal communications with female colleagues and through information made public by GE. GE assumes that Schaefer's allegations made upon information and belief necessarily derive from confidential sources, but it has neither a factual nor legal basis for making such an assumption. "Information and belief" is a "standard legal term which is used to indicate that the allegation is not based on the firsthand knowledge of the person making the allegation, but that person nevertheless, in good faith, believes the allegation to be true." Dorsey v. Nat'l Enquirer, Inc., 973 F.2d 1431, 1437 (9th Cir. 1992) (citing Black's Law Dictionary 701 (5th ed. 1979)). The challenged paragraphs show no reliance upon information directly acquired by Schaefer in confidence from GE while acting in her professional capacity for the corporation. Rather, as explained by Schaefer in her affidavits and discussed above, her allegations are based on informal communications made outside of her legal representation of GE or derived from publicly available information. See Evans v. Reid Reige P.C., No. CV 93 0063465, 1994 WL 710839, at *2 (Conn.Super.Ct. Dec. 13, 1994) (information available through public records is "simply not confidential."). Accordingly, GE has failed to establish that the challenged paragraphs contain privileged information that must be stricken from the Complaint.

D. GE's Confidential Information Can Be Adequately Protected by a Protective Order

In addition to moving to strike the class allegations from the Complaint, GE requests the Court to enter a protective order. A protective order may provide ample ways of protecting privilege information and guarding GE's confidences during this lawsuit. According to Plaintiff, the parties have already been negotiating an agreement that will serve all parties' needs and that will be filed shortly with the Court. Assuming the parties are able to agree upon a final draft of a protective order, GE's motion regarding a protective order will be moot once the Court approves the parties' draft. GE's motion for a protective order is therefore denied as premature, without prejudice to renewal if the parties cannot agree to the terms of a protective order and file it with the Court within 30 days of this ruling.

E. Return of GE's Property

GE also moves the Court to order Schaefer to return to GE all documents and other property that she has obtained by virtue of her employment at GE. In her opposition memorandum, Plaintiff asserts that "GE's counsel has agreed in writing that Ms. Schaefer has returned all GE property" and therefore the request to return property is moot. However, as Schaefer acknowledges in her affidavit, she has retained copies of certain GE documents she considers necessary to have on hand as evidence to refute GE's allegations about her conduct (Schaefer Aff. ¶ 29), contrary to GE's express objection and request. (Def.'s Reply at 27.) Schaefer avers that she has retained copies only of documents which reflect her personal performance at GE, and not which reveal confidential client information. (Schaefer Sur-Reply Aff. ¶ 15.) Schaefer's right to retain copies of such documents is implicit in her right to make defensive disclosures of protected information in dispute with her client under Model Rule 1.6. See ANN. MODEL R. OF PROF'L CONDUCT at 107 (6th ed. 2007) (citing Conn. Ethics Op. 05-04 (2005) (lawyer may keep copies of client files after termination of representation even if client asks for all copies)). Accordingly, GE's request that the Court order the return of GE property is denied.

III. CONCLUSION

For the reasons stated above, the Court denies GE's motion to strike Plaintiff's class action allegations at this time as premature and without merit. Ms. Schaefer's ethical obligations as in-house counsel to GE do not bar her from serving as class representative in a Title VII disparate impact gender discrimination class action. If at any point during discovery the Defendants learn and can demonstrate that Plaintiff is inappropriately using confidential client confidences in asserting her claims or representing the class, the Court may reconsider the propriety of Plaintiff's class allegations at that time. In the meantime, if there is in fact significant overlap between Schaefer's and the other purported class members' claims, it would be wasteful for such claims to be litigated separately; and if no such overlap exists, the defendants can argue accordingly when the petition for class certification is presented to the Court pursuant to Rule 23. Defendant's Motion to Strike [Doc. No. 9] is therefore denied.

SO ORDERED.