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Davis Polk Was Sued By Kaloma Cardwell, Jeh Johnson Complained Now Fee Level Question

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - The Source

SDNY COURTHOUSE, June 28 –  Kaloma Cardwell filed a racial discrimination case against his employer, the "white shoe" law firm of Davis Polk and Wardwell.

He'd been employed there from September 2014 through August 2018, then alleged that "defendants quarterbacked and permitted a playbook that marginalized, discriminated against and retaliated against Plaintiff, the only Black male associate in the Davis Polk's 2014 associate class." Then there was a delay in discovery.

 U.S. District Court for the Southern District of New York Judge Gregory H. Woods held a proceeding on July 28. Inner City Press covered it.  

On March 22 on very little notice, Judge Woods held another proceeding. Inner City Press covered it. The defendant's lawyer Jeh Johnson was complaining that Kaloma Cardwell had declined to show up for his deposition, despite they said their promises to limit access to the transcript. Cardwell's lawyer said the defense does not have an automatic right to a "fourteen hour deposition."

Now on June 28, things are moving to sanctions and fees: "MEMORANDUM OPINION AND ORDER: Fundamentally, the discovery deficiencies at issue in Defendants' motion to compel are of the type that are expected to be resolved without the need for court intervention. Rule 37(a)(5) creates an incentive for parties to work through such disputes, rather than to submit them to a court for resolution. Civil litigators are expected to be aware of the fee shifting nature of the rule; Defendants were not required to specifically request an award of fees. Regardless of how he is being compensated, or his level of experience in this area of practice, it is not unjust in this context to expect Plaintiff's counsel to comply with the rules and to bear the economic consequences of non-compliance. However, the Court cannot evaluate the proper amount of an award without the documents referred to above. Accordingly, the Court requests that Defendants submit the relevant billing records to the Court no later than July 15, 2021. In the event that Defendants wish to provide a substantive reply to Plaintiff's opposition limited to the issue of the reasonableness of their fees, they may do so by the same date. The Clerk of Court is directed to terminate the motion pending at Dkt No. 43. SO ORDERED. (Signed by Judge Gregory H. Woods on 6/28/2021)." Watch this site.

Back on November 13, Judge Woods held another conference in the case, one not listed in the Calendar Events section of PACER. Paul Weiss as counsel for Davis Polk had gotten amended complaint(s) filed on November 9 provisionally sealed, claiming that material in and annexed to them are in the protective order.

On December 9, Davis Polk trashed what they call Cardwell's "continued refusal to return Firm material or produce documents he promised the Court would be forthcoming." They also chide him for filing material stamped "Confidential."

On January 20 they itemized $99,565.20 they want in legal fees, with Bruce Birenboim charging $5,791.50 for 3.9 hours and Susanna Buergel $21,384 for 14.4 hours.

And on February 1, Jeh Johnson appeared. Inner City Press live tweeted, here:

 The gloves are off - Davis Polk is asking for sanctions against Cardwell / lawyer David Jeffries for alleging that evaluation of plaintiff was back-dated, says the amended complaint contains "conspiracy theories."

 Davis Polk's lawyer derides Cardwell for claiming that a Davis Polk person asked him for "a black restaurant recommendation in Harlem" - says it was for a restaurant "near the Apollo Theater." Wants Rule 11 sanctions for baseless allegations. "Over."

Cardwell's lawyer: Rule 11 is not the appropriate vehicle to address this issue. Defendants told is the issue could be addressed by amending the complaint and we did that. We got 99,000 pages in January. 40,000 in December.

Judge Woods: Counsel for Plaintiff, you're in the Safe Harbor period. The Advisory Committee notes specify candor in acknowledging a lack of factual support.

Jeh Johnson of Paul Weiss, for David Polk: They have withdrawn the so-called Black Restaurant allegation.

Judge Woods: So I understand the Safe Harbor has expired and the motion can be brought. So we'll have motion practice. 

Counsel for Cardwell: We will withdraw.

Judge Woods: Withdraw from Second Amended Complaint Para 408, 409 and 410 & the 449 last sentence about Ms Hudson asking for a recommendation for a "Black restaurant"?

Counsel for Cardwell: Yes, Judge

 The case is Cardwell v. Davis Polk and Wardwell LLP et al, 19cv10256 (Woods) 


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