{"id":2993,"date":"2026-06-02T13:34:53","date_gmt":"2026-06-02T17:34:53","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=2993"},"modified":"2026-06-02T13:34:54","modified_gmt":"2026-06-02T17:34:54","slug":"california-federal-court-clarifies-limits-on-ai-bias-testing-and-applicant-data-disclosure-in-mobley-v-workday","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2026\/06\/02\/california-federal-court-clarifies-limits-on-ai-bias-testing-and-applicant-data-disclosure-in-mobley-v-workday\/","title":{"rendered":"California Federal Court Clarifies Limits On AI Bias Testing And Applicant Data Disclosure In Mobley v. Workday"},"content":{"rendered":"\n
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By Gerald L. Maatman, Jr., Adam D. Brown, and Elizabeth G. Underwood<\/strong><\/p>\n\n\n\n

Duane Morris Takeaways:<\/em><\/strong> In Mobley, et al. v. Workday, Inc., Case No. 23-CV-00770, 2026 WL 1510537 (N.D. Cal. May 29, 2026) (ECF No. 340), Magistrate Judge Laurel Beeler of the U.S. District Court for the Northern District of California issued an order<\/a> resolving three discovery disputes in this closely watched employment discrimination class action involving novel artificial intelligence (AI) issues.\u00a0 The Court denied Plaintiffs\u2019 motion to compel production of Workday\u2019s bias-testing data, finding that the attorney-client privilege protects the data because Workday\u2019s attorneys curated it and used the results in providing legal advice.\u00a0 The Court also denied Plaintiffs\u2019 motion to compel Workday to produce its customers\u2019 applicant data because Plaintiffs failed to show that Workday had control of that data within the meaning of Rule 34 of the Federal Rules of Civil Procedure.\u00a0 However, the Court ordered production of Workday\u2019s EEO-1 and Office of Federal Contract Compliance Programs (OFCCP) documents, finding those documents to be relevant to Workday\u2019s knowledge of potential demographic disparities when utilizing its AI tools.\u00a0<\/em><\/p>\n\n\n\n

The ruling is significant for corporate counsel.<\/em> For employers navigating the intersection of privilege, discovery obligations, and AI hiring tools, this ruling provides important guidance on protecting bias-testing data while recognizing the broad scope of discoverable information in AI employment discrimination cases.<\/em><\/p>\n\n\n\n

This development follows Workday\u2019s unsuccessful Motion to Dismiss Plaintiff\u2019s Amended Complaint, which we blogged about <\/em>here<\/em><\/a>, Workday\u2019s first successful Motion to Dismiss, which we blogged on <\/em>here<\/em><\/a>, and the EEOC\u2019s amicus brief filing, which we blogged about <\/em>here<\/em><\/a>.<\/em><\/p>\n\n\n\n

Case Background<\/strong><\/p>\n\n\n\n

Plaintiffs are suing Workday for utilizing an AI screening system that allegedly is more likely to deny employment applications from individuals who are African American, suffer from disabilities, or are over forty years old.  Id.<\/em> at *1.  Workday Recruiting is a software product that helps customers manage hiring, and customers who purchase Workday Recruiting have access to an algorithmic feature called Candidate Skills Match, which determines the extent to which an applicant\u2019s skills match the role to which they applied.  Id.<\/em>  In 2024, Workday acquired HiredScore, which allowed Workday to offer additional features to customers, including Spotlight, a candidate review tool, and Fetch, a sourcing tool that connects organizations with potential talent by suggesting individuals for open jobs.  Id.<\/em><\/p>\n\n\n\n

As to the present discovery disputes, first, Plaintiffs filed a motion to compel Workday to produce its bias-testing data and its customers\u2019 applicant data.  Id.<\/em> at *3.  The parties disagreed as to whether the bias-testing data was protected by attorney-client privilege and whether Workday had control of its customers\u2019 applicant data.  Id.<\/em>  Second, Plaintiffs sought to compel production of Workday\u2019s EEO-1 and OFCCP documents, with the parties disputing relevance, burden, and waiver.  Id.<\/em> at *6.  Third, Plaintiffs moved to compel Workday to provide deanonymized data of applicants\u2019 names and other application information.  Id.<\/em> at *7.<\/p>\n\n\n\n

The Court\u2019s Decision<\/strong><\/p>\n\n\n\n

Attorney-Client Privilege Applied To Bias-Testing Data<\/em><\/p>\n\n\n\n

First, the Court agreed with Workday that its bias-testing data was protected from disclosure by the attorney-client privilege.  Id.<\/em> at *4.  Specifically, the Court reasoned that the bias-testing data was privileged because Workday had shown more than mere direction from its attorneys and \u201cha[d] represented that its attorneys curated the data it used in the bias testing, the overall purpose of the testing was to provide legal advice and not to be used in a business capacity, and it ha[d] not submitted the data to a regulatory body.\u201d  Id.<\/em><\/p>\n\n\n\n

Moreover, the Court rejected Plaintiffs\u2019 arguments that Workday had waived privilege by using the bias-testing data offensively through reliance on an \u201cAI Fact Sheet\u201d that stated Workday performs bias testing.  Id.<\/em> at *5.  Instead, the Court held that \u201cWorkday\u2019s invoking the mere existence of its bias testing outside of litigation [was] not enough to waive privilege.\u201d  Id.<\/em><\/p>\n\n\n\n

No Control Over Customer Application Data<\/em><\/p>\n\n\n\n

Second, the Court denied Plaintiffs\u2019 motion to compel Workday to produce its customers\u2019 applicant data.  Id.<\/em> at *6.  The Court found that Plaintiffs had not met their burden of demonstrating that the provision of the Master Subscription Agreement allowing Workday to produce a customer\u2019s data under a court order constituted \u201ccontrol\u201d under Rule 34 because Workday did not have a legal right to obtain its customers\u2019 data on demand.  Id.<\/em> at *6.  However, the Court observed that some third parties that Plaintiffs had subpoenaed had taken the position that Plaintiffs should seek the data from Workday instead.  Id.<\/em>  Thus, the Court encouraged the parties to work together to resolve the issue.  Id.<\/em><\/p>\n\n\n\n

Production Of EEO-1 and OFCCP Documents<\/em><\/p>\n\n\n\n

Third, the Court ordered production of Workday\u2019s EEO-1 and OFCCP documents, finding that Plaintiffs had met their initial burden on relevance.  Id.<\/em>  In particular, the Court reasoned that Workday utilizes the same AI tools as its customers, and under either the agent or direct-employer theory, \u201cWorkday\u2019s EEO-1 and OFCCP documents are relevant to its knowledge of potential demographic disparities when utilizing AI tools.\u201d  Id.<\/em> at *6.<\/p>\n\n\n\n

Deanonymized Applicant Data<\/em><\/p>\n\n\n\n

Finally, the Court disposed of Plaintiffs\u2019 request for deanonymized applicant data as moot because Plaintiffs had admitted in subpoenas seeking the same information from third parties that they did not need applicant names.  Id.<\/em> at *7.<\/p>\n\n\n\n

Implications For Employers<\/strong><\/p>\n\n\n\n

This decision reinforces the concept that bias-testing data can be shielded from production under attorney-client privilege when an employer\u2019s attorneys curate the underlying data and conduct bias-testing for the purpose of providing legal advice, as opposed to a business or regulatory compliance purpose.  Of note, and as supported by this Court\u2019s decision, companies that utilize AI in their hiring processes should structure their bias-testing under the direction of legal counsel to preserve attorney-client privilege.<\/p>\n\n\n\n

Moreover, the Court\u2019s ruling on EEO-1 and OFCCP documents suggests that employers and AI vendors should be aware that they may face broad discovery obligations regarding their own use of the same AI tools they market to customers, as in this case, the Court found Workday\u2019s EEO-1 and OFCCP documents relevant because Workday uses the same AI tools as its customers.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr., Adam D. Brown, and Elizabeth G. Underwood Duane Morris Takeaways: In Mobley, et al. v. Workday, Inc., Case No. 23-CV-00770, 2026 WL 1510537 (N.D. Cal. May 29, 2026) (ECF No. 340), Magistrate Judge Laurel Beeler of the U.S. District Court for the Northern District of California issued an order resolving … <\/p>\n

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