Equal Employment Opportunity Commission v. Kelley Drye & Warren, LLP

Filing 81

REPLY MEMORANDUM OF LAW re: 79 Opposition Brief. Document filed by Equal Employment Opportunity Commission. (Burstein, Jeffrey)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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EQUAL EMPLOYMENT OPPORTUNITY
:
COMMISSION,
:
ECF Case
:
Civil Action No. 10-cv-0655 (LTS) (MHD)
Plaintiff,
:
:
v.
:
:
KELLEY DRYE & WARREN, LLP,
:
:
:
Defendant. :
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PLAINTIFF EEOC’S REPLY MEMORANDUM OF LAW IN SUPPORT OF
ITS OBJECTIONS TO MAGISTRATE DOLINGER’S JULY 15, 2011 ORDER
DENYING PLAINTIFF’S REQUESTS TO COMPEL DISCOVERY

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION

Jeffrey Burstein
Senior Trial Attorney
One Newark Center, 21st Floor
Newark, NJ 07102
Email: [e-mail]
Tel: [phone]
Fax: [phone]

PRELIMINARY STATEMENT
As Kelley Drye notes on pages 4-5 its brief (hereafter “KD brf.”), the “clearly erroneous”
standard of review of a magistrate’s decision is a deferential one. “A finding is ‘clearly
erroneous’ when, although there is evidence to support it, the reviewing court on the entire
record is left with the definite and firm conviction that a mistake has been committed.” Samad
Brothers, Inc. v. Bokara Rug Co., Inc., No. 09-5843, 2010 WL 5095356 at *1 (Dec. 13, 2010),
quoting Nikkal Indus., Ltd. v. Salton, Inc., 689 F. Supp. 187, 189 (S.D.N.Y. 1988). But just as in
applying this standard in Samad Brothers, the district court nevertheless reversed a magistrate’s
discovery order, id. at *4, so too is it clear “that a mistake has been committed” by Magistrate
Judge Dolinger in denying enforcement of the two EEOC discovery requests at issue.
Kelley Drye’s brief supporting this decision is tellingly silent on crucial facts. With
regard to compensation, unmentioned by Kelley Drye are that (1) unlike the cases it relies on
that rejected discovery demands in part due to burdensomeness, EEOC is simply seeking the
unredaction of information contained in documents that Kelley Drye already provided in
discovery; (2) the limited compensation information that Judge Dolinger ordered Kelley Drye to
provide based on Kelley Drye’s suggestion (ten partners with client revenues close to those of
Charging Party Eugene T. D’Ablemont) ignores the fact that EEOC is seeking relief for other
Life Partners who continued to practice law after age 70, and (3) the measure of D’Ablemont’s
client revenues itself is in dispute between the parties. With regard to EEOC’s requested
documents for ten partners on the crediting of client collections, left unmentioned by Kelley
Drye is that it produced this very type of document regarding D’Ablemont’s client collections to
support its Fifteenth Affirmative Defense that D’Ablemont improperly has claimed credit for

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revenues where he “merely” billed the client. EEOC is entitled to the same information for this
small group of other attorneys to test the bona fides of this affirmative defense.
In short, the Magistrate Judge’s decision is “clearly erroneous” and should be reversed.
ARGUMENT
A. EEOC is Entitled to Full Compensation Information of Partners
Kelley Drye’s essential argument concerning EEOC’s request for partner compensation
information is that this involves an overbroad “fishing expedition.” (KD brf. at 7, quoting
Tennenbaum Capital Partners LLC v. Kennedy, 2009 WL 2913679, at *5 (S.D.N.Y. Sept. 11,
2009). But this is plainly not so. First and foremost, the “fish” have already been caught. That is,
the information EEOC requested is contained in plainly relevant documents that Kelley Drye has
already produced. EEOC is simply seeking unredaction of this compensation information in this
compensation discrimination case. And this setting is distinguishable from the case law relied
upon by Kelley Drye (KD brf. at 6-7) that in part was based on the court’s view that plaintiff’s
discovery requests were overly “broad and oppressive.” See, e.g., Arters v. Univision Radio
Broadcasting TX, 2009 WL 1313285, at *3 (N.D. Tex. May 12, 2009).
Second, D’Ablemont and the other Kelley Drye Life Partners who chose to work past the
age of 70 all had previously been equity partners (D’Ablemont for over 30 years). While at 70
they lost their equity interest and other authority at the Firm, the work they continued to perform
at Kelley Drye was akin to the work performed when they had been equity partners. (See
D’Ablemont Reply Declaration in support of EEOC’s motion for partial summary judgment,
docket entry #59, ¶10 and ¶38.) Clearly then, of the various classes of Kelley Drye attorneys
(and its non-attorney employees), D’Ablemont and the other Life Partners who continued to
practice law after 70 most closely resemble Kelley Drye partners, the subject of EEOC’s

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document request. The mere fact that compensation information is sought from a relatively
sizeable group is not a basis to deny such a plainly relevant discovery request in a discrimination
case. See Lyons v. Anheuser Busch Companies, Inc., 164 F.R.D. 62, 67 (E.D. Mo. 1995) (in
ADEA case, plaintiff’s discovery demands for compensation and other personnel information for
a large group of employees enforced by court).
Third, the suggestion of Kelley Drye, made for the first time at oral argument and
adopted by Judge Dolinger--namely, that Kelley Drye only provide compensation information
for a total of 10 partners whose client receipts were immediately above and below those of
D’Ablemont--is insufficient and unworkable. As noted above, this information would shed no
light on EEOC’s claims of under-compensation of other Kelley Drye attorneys who continued to
practice past the age of 70 (two of whom EEOC identified early on in this matter). Further, as
evidenced by the second component of EEOC’s Objections, how to calculate D’Ablemont’s
client receipts is very much in dispute, meaning that Kelley Drye’s suggested limitation to
EEOC’s request (compensation information for just ten particular partners), adopted by the
Magistrate Judge, readily could lead to additional disputes necessitating Court intervention. And
precisely because of the open issues of the crediting of client revenues and the effect such
revenues have on attorney compensation (and what other factors the Firm values in awarding
compensation), EEOC’s request for full partner compensation information is warranted. For only
with such information can EEOC determine how Kelley Drye’s compensation system operates.
Finally, Kelley Drye’s argument that the denial of EEOC’s motion to compel was
appropriate because compensation information “is among the most sensitive personal

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information that exists” makes little sense here. 1 It is fundamental that despite its sensitive
nature, compensation information is discoverable in a compensation discrimination case. See
EEOC v. Morgan Stanley & Co., No. 01-CV-8421, 2002 WL 1431685 at *2 (S.D.N.Y. July 1,
2002); Lyons v. Anheuser Busch Companies, Inc., supra, 164 F.R.D. at 67 (rejecting privacy
objections in discrimination cases to plaintiffs’ discovery of compensation information).
Moreover, Kelley Drye’s newly-raised concerns are contradicted by its prior actions in
discovery, having previously provided EEOC with compensation information for certain
individual attorneys and also having provided complete Firm Earnings Allocation Committee
reports containing annual projected (though not actual) compensation for all Kelley Drye
partners (Burstein Declaration, submitted with Objections, docket entry #73, ¶ 9).
For these reasons, EEOC is plainly entitled to the fundamental information it seeks: the
unredacted partner compensation information from documents Kelley Drye already produced.
B. EEOC Is Entitled to Documents Concerning Client Collections of a Small Group of
Specified Atttorneys
As expressly set forth in its Fifteenth Affirmative Defense (Kelley Drye Answer to
Amended Complaint and Affirmative Defenses, docket entry # 21), and as reiterated throughout
this matter (Preliminary Pre-Trial Statement, docket entry # 9, pp. 13-14), Kelley Drye has
asserted that D’Ablemont has taken credit for client revenues where he merely sent bills to the
client but was not the “participating partner” who in fact should be credited for such receipts. To
bolster this defense, Kelley Drye submitted a document in discovery supporting its view of
D’Ablemont’s alleged overstatement of client revenues, which document Kelley Drye stated at
oral argument was created for purposes of this litigation (Burstein Dec., Exh. D, p. 16, lines 7-

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In this section of its brief, Kelley Drye refers to its partners as “third parties” (KD brf at 9),
obviously erroneous as Kelley Drye is a partnership owned and operated by its partners.
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21). Because in an earlier ruling, Judge Dolinger had rejected as overbroad EEOC’s request for
documents that would reveal how client revenues were credited for all partners (Burstein Dec.,
Exh. C, pp. 19-21), in its Third Document Request, EEOC simply sought the same documents
for ten designated partners on credit for client billing that Kelley Drye had created for
D’Ablemont.
In its brief, Kelly Drye argues that the denial of EEOC’s motions was appropriate
because it “would need to generate” the requested documents from Firm records (KD brf. at 8).
But Kelly Drye is silent on the obvious anomaly of its position, accepted by Judge Dolinger: that
it can create documents from Firm records for use in this litigation that support its affirmative
defenses yet refuse to provide the same type of documents for a small group of partners, so that
EEOC can test the legitimacy of this affirmative defense. This striking, fundamental unfairness
of Kelley Drye’s selective production of documents, accepted by the Magistrate Judge, warrants
reversal of the second challenged ruling of Judge Dolinger.
C. EEOC Has Been Harmed by Judge Dolinger’s Denial of Its Motion to Compel
Kelley Drye also argues that there is no reason to reverse Judge Dolinger’s rulings
because they were “without prejudice,” thus allowing EEOC to depose Kelley Drye officials
about “the criteria the Firm applies to Partner compensation decisions” and thereafter renew its
document request if such documents are shown to be relevant (KD brf. at 10). However, the
“without prejudice” nature of Judge Dolinger’s rulings does not eliminate the harm to EEOC.
EEOC should not be put in a position whereby it can only obtain certain documents after
depositions have occurred; for this would lead to the cumbersome, unworkable situation whereby
EEOC would have to make a post-deposition document request and then likely recall alreadydeposed witnesses. Obviously, such a process would be squarely contrary to the mandate that the

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Federal Rules should be construed in a manner promoting “speedy” and “inexpensive”
determinations in federal litigation. Fed. R. Civ. P. 1.

CONCLUSION
For the foregoing reasons and those set forth in EEOC’s initial brief, EEOC respectfully
requests that the Court reverse Magistrate Judge Dolinger’s July 15, 2011 rulings and order
Kelley Drye to produce the requested documents at issue.

Respectfully submitted,
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION

s/ Jeffrey Burstein
Jeffrey Burstein
Senior Trial Attorney
One Newark Center, 21st Floor
Newark, New Jersey 07102
Phone: [phone]
[e-mail]

Dated: August 18, 2011
Newark, New Jersey

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