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Judges Orders Preservation of Mediation Notes in Gender Bias Suit Against Proskauer

May 19, 2017, 6:27 PM

In a rare move, a federal judge in Washington, D.C. has issued an emergency order to preserve the notes of a mediation session in which an attorney from Proskauer Rose allegedly threatened a female partner who is now suing the firm for gender discrimination.

The plaintiff, who filed the suit under a “Jane Doe” pseudonym, alleges that a Proskauer attorney illegally threatened retaliation against her during a March 23 mediation.

The Proskauer attorney, speaking for the firm, allegedly said: “You need to understand … you are going to be terminated. Your complaint upset a lot of people.” The plaintiff, who sued the firm on May 12, is hoping to subpoena the mediator’s notes in order to prove the exchange happened.

The lawsuit alleges the plaintiff, a female partner in D.C., was paid less than male counterparts who brought in the same amount of business, and that she was excluded from projects once she began complaining about the pay disparity.

Proskauer has called the case “meritless and completely contradicted by the facts.” In a statement Friday, the firm said the median compensation for its male and female equity partners is “identical” and that the average is “close to identical.”

In her Thursday evening order, U.S. District Court Judge Amy Berman Jackson ordered JAMS to preserve the mediator’s notes and all other documents related to the session. The judge added, however, that the order was no indication the arbitration material will ultimately be found relevant or admissible in the case.

Nevertheless, the order to preserve the mediation records is unusual. JAMS files are typically destroyed 60 days after a mediation in order to preserve the confidentiality of the mediation process, making Thursday’s order “absolutely uncommon,” according to Cynthia Augello, a litigation partner at Cullen & Dykman who specializes in labor and employment law.

“The whole reason behind it is the confidentiality and the ability to go there and be open,” Augello said. “Mediators typically can’t be subpoenaed to testify, unless there’s bad faith.”

Even in cases where courts require mediation records to be produced, they are often do so in chambers in order to protect confidentiality, according to Augello. Allowing mediation notes to be used in lawsuits would “undermine the whole process,” she said. “If they thought that it could be used against them, that would deter a lot of people from agreeing to mediation.”

A firm spokesperson declined to comment on the allegation that a Proskauer attorney threatened retaliation during the March mediation session, citing the confidentiality rules of the session.

“Mr. Sanford knows that there is a mediation agreement in place signed by both parties that requires complete confidentiality,” the Proskauer spokesperson said. “We intend to abide by that agreement. We appreciate the media play he’s making here but it’s not likely to be upheld in court.”

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