Daily Labor Report ®

Davis Polk Seeks $100,000 for Black Ex-Lawyer’s Discovery Abuses

Jan. 21, 2021, 4:23 PM

Davis Polk & Wardwell LLP says a Black former associate accusing the firm and several partners of race discrimination and retaliation owes it $99,565 for the legal costs it incurred in enforcing his discovery obligations.

The firm filed the motion for attorneys’ fees and costs Wednesday following a bench ruling by the U.S. District Court for the Southern District of New York that found Kaloma Cardwell’s responses to Davis Polk’s document requests and interrogatories were inconsistent with the requirements of the Federal Rules of Civil Procedure.

Cardwell objected to many of Davis Polk’s requests solely on the generalized grounds that they were overbroad, unduly burdensome, or irrelevant, Judge Gregory H. Woods said during the Jan. 15 hearing.

But FRCP 26 and related rules advisory committee notes require a party responding to proper discovery request to state which portions of the requesting party’s discovery demands are objectionable and delineate how they exceed Rule 26’s requirements, the judge said. The responding party also must respond to those portions of the discovery requests that aren’t overbroad, overly burdensome, or irrelevant, he said.

Merely objecting generally and offering to meet and confer with the opposing party does satisfy a litigant’s obligations under Rule 26, the judge said.

The court stopped short of finding that Cardwell waived any objections that might properly be raised to Davis Polk’s discovery demands, saying that would be “a harsh remedy.” It gave him one more chance to comply with the firm’s requests.

Cardwell also fell short of Rule 26’s requirements when he produced certain documents with sender and recipient names and other underlying data removed, the court said. He must reproduce those documents with the metadata intact, it said.

The federal rules permit the firm to seek to have Cardwell reimburse it for the legal costs it sustained in trying to get him to comply with his discovery obligations, including filing a motion to compel, Woods said.

Davis Polk’s fees application says the senior partners who took the lead in addressing Cardwell’s discovery failures, and the associates and a paralegal who assisted in them, “collectively spent more than 120 hours on these efforts” just in November and December 2020, resulting in legal fees and costs totaling $99,565.

Cardwell sued the firm, managing partner Thomas Reid, and corporate/mergers and acquisitions group partners John Bick, William Chudd, Sophia Hudson, Harold Birnbaum, Daniel Brass, Brian Wolfe, and John Butler in November 2019.

He was subjected to persistent racial bias in his four years working in Davis Polk’s New York office, including rigged performance review processes and other workplace systems, Cardwell alleges. He says he complained to the firm and federal and state fair employment agencies and was retaliated against by being denied work and then fired.

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

The case is Cardwell v. Davis Polk & Wardwell LLP, S.D.N.Y., No. 1:19-cv-10256, application for fees and costs 1/20/21.

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; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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