The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
This case is being litigated under an unusual degree of uncertainty on the part of the EEOC and an unusual degree of difficulty for defendant Sidley Austin. The EEOC knows well how to prosecute claims of employment discrimination, and members of the defendant partnership as well as its lawyers know well how to defend against such claims. But this case is not typical.
EEOC does not yet know the common parameters for cases in which the claim is that a partner may be deemed an employee of a partnership. Sidley, operating under the assumption that it was not subject to federal anti-discrimination statutes when it decided to "discontinue" (my attempt at a neutral word) partnership status for some of its partners, may not have documented its decisions as a corporation of similar size might have done. The law has not addressed, in concrete terms, whether the precise nature and extent of discrimination, assuming it is proved, will have a bearing on whether this partnership, as opposed to partnerships in general, is liable. Apart from this, those claimed to have been injured are highly compensated lawyers whose job performance may be difficult to measure in comparison to others. While numerical measurements play an increasing role in judging partners at firms like Sidley, there remain intangible merits too difficult to quantify. The EEOC, which alleges that a single quantifiable factor, age, was a significant factor in the decisions, must make its case in the face of traditional notions that a lawyer's worth to the firm cannot be expressed in a number. This problem alone might explain the hostility toward, or, at least, the lack of interest in the EEOC's lawsuit by the discontinued partners who could benefit financially from an EEOC success.
The net effect of this and the high stakes for both parties has been a discovery process motivated by the desire of each side to pin the other side down on every fact and theory it might offer. I fault neither party for the many interrogatories and the voluminous answers they require.
Discovery is nearing an important deadline. There are remaining disputes. Underlying many of these disputes is a profound difference in perspective.
EEOC holds that Sidley had engaged in a unitary act in executing a plan to alter its partners' status much like a corporation that decides it needs a reduction in force and evaluates everyone to see who goes. Sidley says this is plain wrong. Its Momentum Plan and its revision of retirement age provisions were not unitary but independent actions having a common effect on the issue of partnership discontinuation, and, unlike a reduction in force, there was no quantitative goal that had to be met.
I have no way to determine which side, if any, is right about this. Both sides are entitled to pursue discovery which would validate its own theory of the case. To the extent that either side objects on the grounds that the basic premise of their opponent is wrong, I am likely not to sustain objections to discovery.
I. Defendant's Motion to Compel Responses to Interrogatory and Document Requests (Third Set)
Interrogatory 1. EEOC must state what it believes the defendant's retirement policy was at all relevant times or to state that it is unable to do so and give its reasons for that inability. It must identify those partners who were, to its knowledge, exempted for some period from mandatory retirement. EEOC must also identify those partners who it believes were nominally subjected to a retirement policy. By providing such a list, EEOC is not claiming or conceding that a retirement policy alone, or in part, was the cause of discontinuation of a partnership. Documents related to these responses shall also be produced. Where in this opinion I order interrogatories to be answered, I am also ordering production of the related documents.
Interrogatory 2. EEOC is not required to set forth its evidence of age discrimination on a partner-by-partner basis. EEOC's case rests on the proposition that Sidley wished to divest itself of older partners and, I infer, will contend that the individualized review was intended, by and large, solely to decide whom to exempt from the anti-age policy. Sidley will respond by vouching for the legitimacy of an individual review process which never relied on prohibited considerations of age. Sidley wants to acquire what will be rebuttal evidence EEOC will offer to show pretext. Rebuttal evidence is hard to deal with in discovery because it may be difficult to determine what it might be until the opponent offers the detailed defense. Indeed, EEOC may choose to offer proof of pretext in a large number of cases (but not all) and argue that a fact finder should conclude the entire enterprise was pretextual even if it turns out that some of the discontinuations may have been justified, and the partner would have been discontinued even if the process was honest.*fn1
I do order EEOC to respond to the related request that it tell Sidley, where feasible, what part of Sidley's written justifications for its actions are factually incorrect. Answering this portion of Interrogatory 2 will help define the facts in contention. EEOC can tell Sidley whether it disputes a statement that a partner's billable hours have fallen to the degree claimed over a certain period of time. I used the phrase "where feasible" to indicate that EEOC may not be able to identify its position with respect to conclusions that a partner lacked "intensity" and, if so, I think this is understandable. To the extent EEOC now knows its disputes assertions about any of the criteria of discontinuation, it should answer the interrogatory.
I am satisfied with EEOC's proposed date for production of some of the material it concedes it must produce.
EEOC must state the damages it will claim for each former partner but need not respond to the interrogatory asking for evidence it will offer in rebuttal to a defense of failure to mitigate.
EEOC must produce any documents it has with respect to a former partner's performance at their subsequent employment to the extent these deal with conduct of the same sort alleged by Sidley to have been a basis ...