The opinion of the court was delivered by: Judge James B. Zagel
AMENDED 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 how to prosecute claims of employment discrimination, and members of Defendant partnership and its lawyers know how to defend against such claims. This case, however, is not typical.
The EEOC does not yet know the common parameters for cases in which they claim 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. Assuming that the EEOC proves its case, the law has not addressed whether the precise nature and extent of discrimination will have a bearing on whether this partnership, as opposed to partnerships in general, is liable. Apart from this, the people that the EEOC represents are highly compensated attorneys 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, some intangible qualities remain too difficult to quantify. The EEOC is alleging that a single quantifiable factor -- age -- played a significant role in the decisions. Therefore, it 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 the lack of interest in, the EEOC's lawsuit by the discontinued partners who could benefit financially from an EEOC victory.
The net effect of this has been a discovery process which has high stakes for both parties. Each side is motivated by the desire to pin the other side down on every fact and theory it might offer. I do not fault either party for the many interrogatories and the voluminous answers. However, Discovery is nearing an important deadline. There are remaining disputes. Underlying many of these disputes is a profound difference in perspective.
The EEOC contends that Sidley 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 belief is plain wrong. Its Momentum Plan and its revision of retirement age provisions were not unitary, but rather 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 if either side is right about this. Both parties 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 their opponent's basic premise is wrong, I am not likely to sustain discovery objections.
I. Defendant's Motion to Compel Responses to Interrogatory and Document Requests (Third Set)
The EEOC must either state what it believes Defendant's retirement policy was at all relevant times, or 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. The EEOC must also identify those partners it believes were nominally subjected to a retirement policy. By providing such a list, the EEOC is not claiming or conceding that a retirement policy by itself, or in part, was the cause of the discontinuation of a partner's status. Documents related to these responses shall also be produced.*fn1
The EEOC is not required to set forth its evidence of age discrimination on a partner-by-partner basis. Its case rests on the idea that Sidley wished to divest itself of older partners. I infer that it will contend that the individualized review was implemented 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 age considerations. Sidley wants to acquire the rebuttal evidence that the EEOC will offer to show pretext. Rebuttal evidence is hard to deal with in discovery because the opponent has not yet offered a detailed defense. The EEOC may choose to offer proof of pretext in many cases, but not all of them, and argue that a fact finder should conclude the entire enterprise was pretextual even if some of the discontinuations may have been justified, and the partner would have been discontinued even if the process was honest.*fn2
I am ordering the EEOC to respond to Sidley's related request that it list the parts of Sidley's written justifications which are factually incorrect, wherever it is feasible to do so. Answering this portion of Interrogatory 2 will help define the facts in contention. The EEOC can tell Sidley whether it disputes a statement that a partner's billable hours have fallen to the degree Sidley claimed. I used the phrase "wherever it is feasible" to indicate that the EEOC may not be able to identify its position with respect to conclusions such as whether a partner lacked "intensity." If so, I think it is understandable. To the extent the EEOC knows whether it disputes assertions about any of the stated criteria, it should answer the interrogatory.
I am satisfied with the EEOC's proposed date for production of some of the material it concedes it must produce.
The EEOC must state the damages it will claim for each former partner, but it does not need to respond to the interrogatory asking for evidence it will offer in ...