Welcome back to Opening Argument, a reported column where I dig into interesting disputes in high-profile cases, and unpack issues that are dividing appellate courts. On deck today: a look the discovery win Jones Day got in the fight over its alleged discriminatory parental leave policy.
Imagine being ordered by a court to throw your former co-workers under the bus.
That’s potentially what Mark Savignac and Julia Sheketoff are going to have to do in their civil rights lawsuit against their former employer Jones Day if any other attorneys at the firm encouraged or helped them sue the company. The questions Jones Day eventually chooses to ask those attorneys, if they are deposed, creates tricky questions about client confidentiality. Those attorneys also risk their employer’s ire if outed.
A federal judge late last month told the couple they had to comply with the law firm’s discovery request for the names of anyone they consulted with about Jones Day’s policies before Savignac complained in a January 2019 email that the company’s parental leave policy unlawfully discriminates against men.
“The order could pose a significant risk to some Jones Day attorneys if they’re on the list,” said Peter Romer-Friedman, a principal at Gupta Wessler PLLC, who heads the firm’s civil rights and class actions practice.
Savignac and Sheketoff have been in ongoing litigation with the firm since August 2019. The couple alleges Jones Day fired Savignac in retaliation three days after he accused the company in an email of sex discrimination and demanded the additional eight weeks that women in the firm get for childbirth.
In that email complaint, Savignac said they had “discussed the matter with other competent attorneys” and the company’s policy is illegal under D.C. and federal civil rights laws.
Paul Pautler Jr., a partner at Husch Blackwell in Kansas City who defends employers against these kinds of disputes, said Savignac and Sheketoff have to show that the complaint, which allegedly got Savignac fired, was made in “good faith.”
If Jones Day interviews these ”competent attorneys” and they deny ever having a conversation with Savignac or Sheketoff, Jones Day can say it wasn’t, he said.
Although its interviews with these attorneys might not amount to anything, Jones Day has the right to explore this defense and find out at minimum if they’re bluffing or not, said Aron Zavaro, a senior associate at Thatcher Law Firm LLC in Maryland, who represents employers and employees in employment law disputes.
“In the discovery phase, you don’t know what you don’t know,” he said.
What we definitely don’t know is who will be named as witnesses, if anyone is named at all. In his order, Judge Randolph Moss said Savignac and Sheketoff, who both clerked for Supreme Court Justice Stephen Breyer, already identified several current and former Jones Day attorneys they talked to about the company’s policies. They refused, however, to name the people they consulted with in anticipation of suing the firm, which could include other lawyers at other law firms. That’s attorney work that’s protected, they argued unsuccessfully.
Attorneys say it’s entirely possible additional Jones Day lawyers will be named, which could put those people at risk of retaliation by the firm.
In a case like this, that’s a possibility, said A.J. Dhali, principal attorney at Dhali PLLC in Washington, D.C., who represents employees in employment cases. But he said those attorneys would then have a basis for a retaliation claim of their own if the retaliation happens soon after they are interviewed as witnesses in the case.
If Jones Day wants to retaliate and do it covertly, he said they’d wait six to nine months.
Jones Day attorneys handling this case didn’t respond to a request for comment. In an email, Sheketoff said neither she nor Savignac have a comment at this time.
Though Moss’s order may seem like a big win for Jones Day, attorneys say it doesn’t actually give them all that much.
The judge simply said Sheketoff and Savignac have to turn over the names because that list isn’t going to disclose anything related to legal theory or strategy, Zavaro said.
Moss explicitly said he wasn’t expressing views on what limits exist on the kinds of questions Jones Day can ask those who are named. That means this fight may be far from over.
“We haven’t heard the last on this issue,” Zavaro said.
Thanks for reading. If you know of an issue, dispute, or question that’s puzzling courts or worth digging into, email me at firstname.lastname@example.org.