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Brodkorb vs. lawmakers: Depositions 101

Michael Brodkorb
MinnPost photo by Terry Gydesen
Michael Brodkorb has linked his termination to the affair, and claims he was treated differently from female legislative staffers who have had affairs with male lawmakers.

Forget Voter ID, the proposed Vikings stadium and the survival of collective bargaining, the question on pretty much every mind over at the Capitol at the moment is: Just how much shock and awe can Michael Brodkorb inflict on his erstwhile homies?  

In a word: Plenty.

But if the former state Senate communications director wants to use a lawsuit to name names of lawmakers past and present who have engaged in dalliances, it likely will take the cooperation of a judge who is persuaded his plan to subpoena his former colleagues is not an attempt to intimidate or harass.

Brodkorb was fired in December after word surfaced of his affair with then-Senate Majority Leader Amy Koch. At the time, Senate Secretary Cal Ludeman, who did the actual firing, said it was because Brodkorb had lost the faith of GOP leadership.

Brodkorb has linked his termination to the affair, and claims he was treated differently from female legislative staffers who have had affairs with male lawmakers and kept their jobs. Koch kept her seat but resigned from her leadership post.

Ludeman's statement

The latest chapter of the ongoing saga began last Wednesday, when Ludeman issued a terse statement saying that an outside attorney had found Brodkorb’s wrongful termination complaint without merit.

“Despite Mr. Brodkorb’s efforts to disrupt the work of the Senate in the current legislative session, to distract members of the Senate, to extort a payment from the Senate, and to try his so-called claims in the media, the Senate will not allow that to succeed,” Ludeman said.

Brodkorb’s response, via his legal team, was to make public a document filed Tuesday with the Minnesota Attorney General’s Office: “It is clear that Mr. Brodkorb was terminated based on his gender. He intends to depose all of the female legislative staff employees who participated in intimate relationships, as well as the legislators who were party to those intimate relationships, in support of his claim of gender discrimination.”

At a news conference Thursday, Brodkorb attorney Phil Villaume said that, at least for now, no names would be made public if he and Brodkorb deposed senators and staff whose affairs did not result in termination.

For anyone possibly on his list to subpoena, there’s good news and bad.

Brodkorb can file suit either in federal or state court, via slightly different paths. In either case, one of the claims he is likely to assert is that differential treatment because of his gender was a violation of the state Human Rights Act. Once filed with a court, his complaint would be public but not necessarily contain individual allegations.

An interesting tangent: Minnesota allows would-be plaintiffs to commence litigation simply by serving their complaint on the presumed defendant and not the court. In theory anyway, the defendant can look at the complaint, see that the accuser has the goods and offer a settlement before the whole mess is made the subject of a public proceeding.

Indeed, in state court you need not file until you want a judge’s attention — which would likely happen pretty darn quickly in Brodkorb’s case.

'Not a common claim'

“Reverse discrimination is not a common claim, and is not a claim that commonly gets a sympathetic ear,” explained employment attorney Chuck Lentz. “But it’s not out of the realm of possibility. And it does open the door to litigation and to fairly broad discovery.”

Discovery being the fact-finding phase of litigation that includes the aforementioned depositions: legal interviews with likely witnesses, conducted with a court recorder and attorneys present.

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In this case, anyone summoned is likely to go straight to the judge, where their first argument is either they know nothing, making their statement irrelevant, or the subpoena is an improper attempt to harass and intimidate.

To counter this, Brodkorb will have to convince the judge that he has good reason to think the interview will yield evidence and is not a fishing expedition.

The judge can allow the deposition to go forward or not, or can order it taken under seal or protective order, which is often done in commercial litigation that supposedly involves trade secrets. If there is no seal or protective order, either side can choose to share the resulting transcript.

Many depositions still never become a matter of public record. The statements are not public unless they are attached to a document filed with the court in the case or offered into evidence at a hearing or trial.

Can be expensive

Because they involve questions from both sides, breaks for court reporters and potentially endless objections to be preserved for a judge’s later review, depositions can go on for hours — expensive hours. Which Brodkorb – or, if he’s retained them on a contingency basis, his attorneys – must front, weighing the cost against his potential for recovering damages.

Indeed, it can be hard to find an attorney to pursue the old-fashioned type of gender discrimination case unless one is a corporate executive or other highly-paid type whose lost future income is likely to sport a lot of zeros.

The defense of the humble worker bee is in fact why we have the Equal Employment Opportunity Commission and state Department of Human Rights, which are supposed to investigate precedent-setting cases without regard to their monetary value.

To file suit in federal court, Brodkorb must first file an EEOC complaint, which he did last week. The agency isn’t likely to investigate his case, however, since it’s unlikely to have policy ripples and Republican-championed budget cuts have left it and its state counterpart too understaffed to take on most deserving cases.

In sum, whether he has a winnable case or not, Brodkorb can cause a lot of discomfort for a lot of people and over a span of time they’d sooner not imagine. But he can hardly convene the kind of secretive Star Chamber his statements suggest, nor can the party of fiscal responsibility easily pay out.

Much quicker – and more familiar to both sides, perhaps, is the back and forth of a game of brinksmanship.

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Comments (7)

Political theater

Aside from Bradlee Dean announcing that he's gay during his next legislative prayer, it's hard to imagine something more damaging to the already-tattered reputation of the state's Republican Party, especially its more confrontational right-wing elements. This could turn out to be interesting, maybe even entertaining, political theater, but it's hard to see how Minnesota will benefit from Mr. Brodkorb's exercise in irony escalation (Mr. "attack dog" whining that he's been treated unfairly). I don't have much sympathy for Amy Koch, but I'm not totally devoid of compassion, and surely, this must be making her own personal nightmare even worse.

I hope this doesn't fly too far

I, personally, don't think that Brodkorb was unfairly fired because of the affair. I think he was unfairly NOT fired because of the affair. It's beginning to sound like no one liked him but Amy Koch. Reports of complaints being ignored suggests that the only reason he was keeping the job was because he and Amy were enjoying each others' company on the side lines. Or maybe they weren't. It would seem to me that Ms. Koch would have a lot more to lose from being in such a relationship than he. Perhaps it was he that was holding the reins. Either way, with Amy out of the way of his firing, that's exactly what they did. Of course, the GOP "leaders" didn't NEED to air her dirty laundry. That was pretty bad. (Not that I feel sorry for her.)

Inquisitions into Personal Affairs

I find it hard to believe that by claiming reverse discrimination, Mr. Brodkorb can subject anyone to a deposition and then interrogate them on their private sex life. What about the privacy rights of the innocent bystanders who are not a party to this litigation?

I can't imagine that anyone who is neither a plaintiff, nor a defendant in this litigation can be subjected to this kind of inquisition. If I were subjected to this kind of deposition, I would just tell the court that this kind of information is private and none of anyone else's business.

This All Reminds Me of Carol Burnett's Old Show

and the satirical soap opera skits they often featured:

"As the Stomach Turns,"...

and all this from the party of "family values" and high moral standards.

It turns out our Republican friends are as honest and above board in their private lives and intimate relationships as they have always been in their business dealings.

Who woulda thunk it?

But since you can always tell what a "conservative" will do, given sufficient power to do it, by taking notice of what they accuse others of doing, we should not be surprised at Mr. Brodkorb's behavior, should we?

My suspicion is, if Brodkorb

My suspicion is, if Brodkorb is not really burning his bridges with vengeance in mind, his legal team will focus on targeting Democratic lawmakers first.

Brodkorb

It seems to me that Michael Brodkorb is the AJ Pierzynski of Minnesota politics. He is much reviled by the opposition and "hated less" by those on his side of the aisle. While Brodkorb is not much of a friend, it seems he is a powerful enemy and Senate Republicans now will have to endure being in his sights.

What is the reality? Was Brodkorb the assistant under the thumb of Koch or was he the agressor? Did Brodkorb carry out the orders of Koch or when Amy spoke representing the caucus were Michael's lips moving? Did Brodkorb's relationship with Koch save him from being fired earlier?

In summary, this is all smarmy, petty hurtful to the entire Senate. This embarrassment can't go away too soon for state Senate Republicans.

Gender Discrimination ... from a Republican ...Guy?

Geez, talk about political suicide. This guy is working in a party that would gladly throw out each and every gender discrimination lawsuit to ever exist and he's claiming gender discrimination ... as a guy? Could he find a way to more annoy his now former fellow republican pals? Yeah, by using the State Human Rights Act, another something the republicans would like tossed in the wood chipper. I imagine he'll be looking for a boatload of money because no one on either side of the aisle will ever hire him or want to work anywhere near him again. He'll be toxic for a long, long time. But how romantic - all this for a lovely lady and some smoochin' in the rotunda!