TRW, INC. v. Superior Court

The well crafted opinion of the majority has persuaded me that Mr. Ma did not have the right *1855 to insist upon having counsel present at the proposed meeting with TRW’s security department. There is insufficient evidence to support the trial court’s finding that the interrogation would have been sufficiently custodial so as to trigger Mr. Ma’s Fifth Amendment right to counsel.

Ma’s subjective fears that he might lose his job, his security clearance or be subjected to criminal prosecution if he attended the interview do not, in themselves, convert the interview into a custodial situation without some objective indicia that, had he attended, he would have been deprived of his freedom of movement. There is nothing in the record from which I can conclude that, had the interview fulfilled Ma’s fears, he could not have simply declined to answer any further questions and left. I therefore concur in the disposition of the writ but I dissent from the majority’s conclusion that TRW was not a government actor.

The United States Supreme Court’s attempt to answer the question of when a private entity can be held to be a state actor has yielded a number of different tests and formulations.…

TRW, Inc., petitioned this court for a writ of mandate seeking relief from the trial court’s orders that TRW was a government actor when it requested an interview of an employee regarding an alleged violation of security regulations and that an employee has a Fifth Amendment right to counsel at any such interview. The trial court’s rulings were in response to motions in limine of the real party in interest, Jack Ma, who filed this action for tortious termination. The trial has been stayed by agreement of the parties and pending review of this matter.

Factual Background

TRW’s Security System

TRW is a privately owned company and a defense contractor producing goods and services for the United States Government. Some government contracts involve classified information and require TRW to sign a separate contract with the Defense Investigative Service (DIS), an administrative agency within the Department of Defense. The contract with DIS obligates TRW to safeguard classified information and to maintain a security system in accordance with the DIS’s Industrial Security Manual (ISM). The ISM provides that TRW report information coming to its attention of any of its employees…

Allan F. Grossman, Horvitz & Levy, George P. Schiavelli and Ellis J. Horvitz for Real Party in Interest.

OPINION

VOGEL (C.S.), J.

TRW, Inc., petitioned this court for a writ of mandate seeking relief from the trial court's orders that TRW was a government actor when it requested an interview of an employee regarding an alleged violation of security regulations and that an employee has a Fifth Amendment right to counsel at any such interview. The trial court's rulings were in response to motions in limine of the real party in interest, Jack Ma, who filed this action for tortious termination. The trial has been stayed by agreement of the parties and pending review of this matter.

TRW is a privately owned company and a defense contractor producing goods and services for the United States Government. Some government contracts involve classified information and require TRW to sign a separate contract with the Defense Investigative Service (DIS), an administrative agency within the Department of Defense. The contract with DIS obligates TRW to safeguard classified information and to maintain a security system in accordance with the DIS's Industrial Security Manual (ISM). The ISM…