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Black Davis Polk Lawyer Gets More Discovery Time, Firm Gets Fees

July 28, 2020, 7:47 PM

A Black former Davis Polk & Wardwell LLP attorney who says he was subjected to race-based employment discrimination and retaliation may serve discovery demands on the firm despite his “extraordinarily weak” justifications for missing the original deadline, a federal court in New York ruled Tuesday.

Kaloma Cardwell and his counsel pointed to the outbreak of the Covid-19 pandemic in New York City and the need to file an amended complaint in the November 2019 lawsuit on the same March 2 date discovery requests were due to be exchanged by the parties.

But the onset of the pandemic isn’t an adequate excuse for missing the cutoff time set in the U.S. District Court for the Southern District of New York’s original scheduling order, because the March 2 date had already passed by then, Judge Gregory H. Woods said from the bench during a telephone conference. Neither was the need to devote resources to another filing deadline, Woods said.

Cardwell nevertheless deserves more time to propound discovery requests on Davis Polk, “in the court’s discretion,” given the “acute prejudice” he would suffer were an extension denied, the judge said.

That satisfied the need to show “good cause” for an extension, if “just barely,” even though the excuses offered by Cardwell and his lawyer didn’t and even though the missed and extended deadlines have and will somewhat prejudice Davis Polk, Woods said.

The firm may, however, recover the reasonable costs and legal fees it incurred as a result of the discovery dispute as a sanction for Cardwell’s discovery noncompliance, the judge said.

Both Cardwell’s initial discovery demands and the firm’s application for fees and costs must be made by Aug. 11 at the latest, the court said.

Cardwell’s counsel will be solely liable for Davis Polk’s fees and costs because his excuses for missing it were “largely unconvincing,” Woods said.

The court also reset all previously set subsequent case management deadlines accordingly. The new dates will “flow” from the Aug. 11 date and be adjusted by the length of time remaining for that litigation event when Cardwell missed the March date, the court said. It will issue a written order “later today or tomorrow,” it said.

Cardwell asked for a shorter time-frame, but the court went with a “variant” of the firm’s request.

The delay was entirely the fault of Cardwell and his legal team, the court said. It also acknowledged the continuing litigation impacts of Covid-19.

David Jeffries represents Cardwell. Paul, Weiss, Rifkind, Wharton & Garrison LLP represents Davis Polk and eight individual defendants.

For additional legal resources, visit Bloomberg Law In Focus: Coronavirus (Bloomberg Law Subscription).

The case is Cardwell v. Davis Polk & Wardwell LLP, S.D.N.Y., No. 1:19-cv-10256, discovery scheduling order modified 7/28/20.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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