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Davis Polk Was Sued By Kaloma Cardwell, Jeh Johnson Complained Now Records Are Sealed

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

SDNY COURTHOUSE, Sept 22 –  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, 2022. Inner City Press covered it.  

On March 22, 2021 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."

On June 28, 2021  things were 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)."

On September 22, 2021, this: "MEMORANDUM OPINION AND ORDER re: [115] MOTION to Dismiss the Second Amended Complaint. filed by Daniel Brass, Sophia Hudson, John Bick, Brian Wolfe, William Chudd, Thomas Reid, Davis Polk and Wardwell LLP, John Butler, Harold Birnbaum, [165] MOTION to Amend/Correct [147] Complaint,, . filed by Kaloma Cardwell. For the reasons stated above, Defendants' motion to dismiss is GRANTED in part and DENIED in part. Cardwell's discrimination claims against Birnbaum and Wolfe are dismissed. His disparate impact discrimination claims are also dismissed. But Cardwell's discrimination claims against Brass, his retaliation claims against each of the Additional Defendants predicated on his termination, and his retaliation claims against Birnbaum and Wolfe predicated on their failure to staff him, are all adequately pleaded. Accordingly, Defendants' motion is denied as to those claims. Plaintiff's motion to amend is GRANTED, except to the extent that Plaintiff seeks to add a disparate impact claim. Plaintiff is directed to file his third amended complaint no later than ten days after the date of this opinion."

Also, four grand: "ORDER granting [130] Motion for Attorney Fees. The Court imposes a sanction in the amount of $4,000 on Mr. Jeffries, payable to Defendants. The Court requests that the parties propose a reasonable schedule for the payment of this amount. (Signed by Judge Gregory H. Woods on 9/23/2021)."

Nearly a full year later, an order to seal records: "MEMO ENDORSEMENT: granting [246] Letter Motion to Seal. ENDORSEMENT: Application granted. In Mirlis v. Greer, the Second Circuit summarized the three steps that the Court must follow to determine whether the presumption of public access attaches to a particular document and bars sealing. See 952 F.3d 51, 59 (2d Cir. 2020). First, the Court determines whether the document is a "judicial document," namely, "one that has been placed before the court by the parties and that is relevant to the performance of the judicial function and useful inthe judicial process." Id. (quotation omitted). Second, if the materials are "judicial documents," the Court proceeds to 'determine the weight of the presumption of access to that document.'" Id. (quoting United States v. Erie Cty., 763 F.3d 235, 239, 241 (2d Cir. 2014)). "The weight to be accorded is 'governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts.'" Id. (quoting United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995)). "Finally, the court must identify all of the factors that legitimately counsel against disclosure of the judicial document, and balance those factors against the weight properly accorded the presumption of access." Id. Applications to seal documents must therefore be "carefully and skeptically review[ed]... to [e]nsure that there really is an extraordinary circumstance or compelling need" to seal the documents from public inspection. Video Software Dealers Assn v. Orion Pictures Corp., 21 F.3d 24, 27 (2d Cir. 1994). Having evaluated these factors, the motion to seal is granted. The documents sought to be sealed are judicial documents. The presumption has limited weight with respect to the information sought to be sealed; the names and gender pronouns of the individuals has no substantial impact on the Court's evaluation of the motion. The factors that counsel against disclosure described in this letter-principally the privacy interests of the innocent third parties- outweigh the public's interest in disclosure of the redacted information. The individuals at issue here are truly innocent -they are drawn into this case not because of their conduct, but because they happened to be at the firm at the same time as Plaintiff. For that reason, this matter is distinguishable from Lytle v. JPMorgan Chase, 810 F. Supp. 2d 616 (S.D.N.Y. 2011), the case cited by Plaintiff in his response. Dkt. No. 287. As a result, the motion to seal is granted. This determination is made only with respect to the information at issue at this stage of the case and on this record. The Clerk of Court is directed to terminate the motion pending at Dkt. No. 246. SO ORDERED.. (Signed by Judge Gregory H. Woods on 9/22/2022)." Watch this site.

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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