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Brodkorb lawsuit could face limits on naming Capitol affairs

To prove his lawsuit, Brodkorb says he’s prepared to name names, but there are limits the court can enforce.

His lawyer, Greg Walsh, discusses Michael Brodkorb's complaint filed with the Equal Employment Opportunity Commission.

There could be court-ordered limits on any steamy tales of love and lust in Capitol corridors, as threatened by the sex discrimination case that Michael Brodkorb has brought against the state and the Minnesota Senate.

To prove his lawsuit, Brodkorb, former communications director for the Senate Republican caucus, says he’s prepared to name names. He plans to identify similarly situated female legislative employees who had intimate relationships with legislators but were not fired from their jobs. He claims he was let go because of his relationship with former Republican Senate Majority Leader Amy Koch.

But that list of examples may not be long.

“Similarly situated is not just anybody who had an affair,” said Sara McGrane, an employment attorney with the Felhaber law firm in Minneapolis, in an interview about the case. “The court will be careful before it allows a widespread fishing expedition [in order to protect] innocent parties who have nothing to do with this.”

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The court would determine how many depositions are allowed.  “The parties may say, ’15 depositions,’ which the court may limit,” said McGrane.

In addition, McGrane said, depositions that would reveal the names and positions of legislators and their employees are private, up to point. They become public when used in a trial or if a defendant files for a summary judgment.  It’s unlikely they’d be leaked — “Highly unusual,” she said.

McGrane, who is a defense lawyer in unemployment cases, declined to judge whether Brodkorb has a winnable claim of sex discrimination. But she picked up on some of the fine print in the complaint. 

In March, Brodkorb filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission. Last week, the EEOC dismissed the charge but told Brodkorb he could proceed with a lawsuit. That could be telling, said McGrane. “The EEOC took a pass on probable cause. If I had to pick a side, I’d rather be on the defendants’ side in this case.”

Senate Majority Leader David Senjem indicated he’s prepared to fight to the legal finish line. “I believe the Senate has done nothing wrong. In fact, the Senate has acted carefully and appropriately in regards to this employment issue. I am not interested in a mediated settlement, and I believe the Senate will prevail in court,” Senjem said in a statement.

That will be expensive, said McGrane, because a typical employment case can reach six figures in legal fees. The Senate — i.e., the taxpayer — has already spent $85,000 in preparation for the lawsuit and now will pay legal fees for any employee who becomes involved in litigation.

“It is expensive for the defense to go forward,” she said. “It’s not uncommon for it to be cheaper to pay a plaintiff to settle the case.”

Expenses can multiply if lawyers go beyond the basics of investigation and discovery.

McGrane ticked off the cost drivers: “cases with a lot of motion issues; expert witnesses; independent medical examinations — for example, if there is claim of severe emotional distress.” Another expensive item, she said, is multiple depositions.

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Brodkorb’s attorneys will ask to depose current and former members of the Republican leadership, including Sens. David Hann, Claire Robling, Chris Gerlach, Geoff Michel, Senjem, and Koch.

They also will want to depose Cal Ludeman, the secretary of the Senate, who personally fired Brodkorb and who is named directly in a charge of defamation.

Add to that the female employees that Brodkorb will want to depose to prove his case, and the plaintiff’s list could reach 20 or more.

Who is allowed on this list by the court is critical. “This becomes your playbook. This is what I’m allowed — where I have to make my best case,” said McGrane.

So it may not be multiple cases of private affairs between public people that Brodkorb will be allowed to offer up to the court.  It may be just one.  But that will be enough to encourage a Capitol guessing game and to maintain the public’s interest into the election season.