Davis Polk Says Black Lawyer’s Bias Suit Changes Publicity Ploy

A Black former Davis Polk & Wardwell LLP associate suing for alleged race discrimination and retaliation failed to show good cause to amend his complaint for a third time and the “extensive” changes he proposes are prejudicial, futile, and a bid for further publicity, the firm and eight partners told a New York federal judge.

Kaloma Cardwell initially sought leave Feb. 5 to amend a corrected version of his complaint via letter motion and then filed a formal motion with the U.S. District Court for the Southern District of New York March 17. The corrected “second amended” complaint came after Cardwell was allowed to withdraw some allegations Davis Polk and the individual defendants argued were false and defamatory, mooting a proposed $100,000 sanctions motion against him and his attorney.

Cardwell said further amendment is warranted based on the 166,000 or so pages of documents turned over to him during discovery months after the second amended complaint was first filed in November 2020, approximately 120,000 of which were produced in mid-January and early February.

The new information included documents showing partners and managers regularly tracked and discussed the emails, complaints, interactions, and performance reviews of him and other Black associates and that he was unexpectedly put in “a mid-year performance review cycle” in 2016 that was subsequently used to materially alter his employment, Cardwell said.

Those documents “directly bear on issues that will affect the Court’s adjudication of Defendants’ partial motion to dismiss,” he said.

But Cardwell failed to show good cause for changing his pleadings so late into the case, the firm and the current and former partners he is suing said Wednesday.

Fact discovery is scheduled to close in three weeks and has already been extended by seven months because of Cardwell’s prior failure to meet his discovery obligations, they said. Document discovery is complete, and depositions have begun, they said.

Moreover, Cardwell was warned by the court when filing his second amended complaint that he “should not expect any additional opportunities to amend,” Davis Polk and the partners said.

Yet the new proposed amendments would add 153 new paragraphs and 47 new pages to the lawsuit, they said. That’s after the second amended complaint added 260 paragraphs and 42 pages. If the new amendments are allowed, the complaint will be 216 pages, they said.

“Plaintiff is not entitled to amend each time he gets new documents in discovery as a way of continuously publicizing his claims in real time via a public pleading,” Davis Polk and the partners said.

Permitting the latest amendments would be wasteful and abusive because it would moot the pending motion to dismiss, requiring the preparation of a new motion, resulting in “weeks, if not months, of additional motion practice” on threshold issues, they said.

The proposed amendments would also substantially revise several of Cardwell’s theories in the case, which would be prejudicial at this late date, the firm and partners said.

None of those changes would salvage any of the claims on which dismissal is sought in the pending motion, making the proposed amendments futile, Davis Polk and the partners said.

Cardwell alleges in the suit that he was subjected to rigged performance review processes and other race discrimination during his four years in Davis Polk’s New York office. He says he was also denied work and ultimately fired for complaining about the bias to enforcement authorities.

Judge Gregory H. Woods in an Oct. 26 ruling dismissed many of Cardwell’s original claims against the partners and his race harassment allegations but gave him leave to replead some of those claims.

David Jeffries of New York represents Cardwell. Paul, Weiss, Rifkind, Wharton & Garrison LLP represents Davis Polk and the eight partners.

The case is Cardwell v. Davis Polk & Wardwell LLP, S.D.N.Y., No. 1:19-cv-10256, memorandum in opposition to motion for leave to file third amended complaint 3/24/21.