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Brodkorb vs. lawmakers: Depositions 101

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

Michael Brodkorb

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.

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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.

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‘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.

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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.