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Several of the partners Sidley Austin Brown & Wood allegedly discriminated against on the basis of age have sought to sever themselves from the Equal Employment Opportunity Commission’s suit against the Chicago-based law firm. Following a four-year investigation, the EEOC sued Sidley Austin in January, alleging the firm demoted to counsel or forced to retire 32 partners because of their ages in violation of the federal Age Discrimination in Employment Act. Sidley Austin’s actions took place in 1999, when most of the affected partners were in their late 50s or early 60s. The lawsuit and the prior investigation focused widespread attention on firm retirement policies as well as the highly centralized management structure of today’s large firms. But Sidley Austin and at least some of the partners who allegedly experienced age discrimination are now concerned that attention is shifting to the personnel records of individual lawyers. Seven of the 32 partners filed formal objections to the EEOC’s request for their personnel files from the firm. At an Oct. 18 hearing in the case, Judge James Zagel of the U.S. District Court for the Northern District of Illinois said the objections were “largely based on the proposition that these individuals don’t want to be parties” in the case. One demoted partner wrote to EEOC lawyer Deborah Hamilton in a June 24 letter, asking her and the agency to “cease any representation of me” and “take whatever steps are appropriate to sever me from this action.” But EEOC lawyer Laurie Elkins wrote back to the partner pointing out that only the government was an actual party to the case. The affected class members for whom the EEOC is seeking relief, she said, are not parties and cannot therefore be severed. Zagel likewise rejected six of the seven partners’ objections at the Oct. 18 hearing. Elkins explained Tuesday that the one partner whose objections were sustained had been under 40 when demoted by the firm and was therefore not subject to EEOC jurisdiction. Elkins said the lawyers’ personnel records were crucial to the case because Sidley Austin was claiming the partners were demoted for performance reasons rather than age. She said the EEOC had just received the files for the affected partners and had not had a chance to go through them. But she said, “We do not expect our view of the case to change.” The exact contents of Sidley Austin’s personnel files are not clear, but the files certainly contain information about billable hours, revenue origination and other measures of individual lawyer’s performance that could prove embarrassing. David Richards, one of the few demoted Sidley Austin partners who have spoken publicly about the matter, said he thought the firm was trying to intimidate the affected class by also raising the prospect that information about sexual harassment complaints, alcoholism and other misconduct could emerge from the files. “I believe this is an unpleasant and unworthy attempt to rattle former partners that were told at the time they were let go because of age,” said Richards, who is now a partner in the New York office of McCarter & English. He said he had no fear about the release of his file because he knew the firm had no cause to fire him other than age. PROTECTIVE ORDER A Sept. 2 protective order issued by Zagel strictly limits how confidential information, including the names of the demoted partners, can be disclosed. The order also gives the parties broad discretion to file documents under seal or in redacted form. But at the Oct. 18 hearing, Zagel expressed amusement that the objecting partners, some of them litigators themselves, had shown little faith in such orders. “They basically are objecting on the grounds that they believe that all of the information will come out no matter what the protective order says,” the judge said, according to a transcript of the hearing. But the demoted partners are not the only ones concerned. Elkins said requests have just gone out for the personnel files of other Sidley Austin partners. The goal, she said, will be to identify whether similarly situated younger partners were treated differently from members of the demoted group. She said she expects objections from the firm and individual partners to those requests. The lawyers representing Sidley Austin in the case, Gary Elden and Gregory Jones of Chicago’s Grippo & Elden, have cited the highly sensitive nature of the discovery being sought by the EEOC in urging Zagel to reconsider or certify for interlocutory appeal his June denial of Sidley Austin’s motion to dismiss. The firm cited in that motion the 7th U.S. Circuit Court of Appeals’s 2001 decision in EEOC v. North Gibson School Corp., 266 F.3d 607, which held that the EEOC could not seek monetary relief on behalf of individuals whose own claims were procedurally barred. Zagel said that decision had been overturned by the U.S. Supreme Court’s 2002 decision in EEOC v. Waffle House, 534 US 279, which said the agency had a statutory right to seek damages separate from any individual’s. Sidley Austin is arguing that the trial court must follow the 7th Circuit’s decision until the appeals court itself states that it has been overruled. Calling the discovery sought by the EEOC potentially “extremely damaging,” Elden asked the judge to consider that in deciding Sidley Austin’s motion to reconsider. “If we are right on North-Gibson, all of this damage to the reputations and people’s lives will be for naught,” he said. PARTNERS AS ‘EMPLOYEES’ Elkins said Tuesday the discovery issue was a “red herring” with regard to the motion to reconsider. She said the EEOC would have sought the discovery even if it could only seek injunctive relief rather than monetary damages on behalf of the individual partners. Zagel is expected to hear oral arguments on the motion to reconsider today. The monetary damages sought by the EEOC could be in the millions. The agency’s suit is seeking back pay and other compensation for what it says are the victims of discrimination. Sidley Austin’s profits per partner were $1 million in 2004, according to a survey by The American Lawyer magazine, an affiliate of the New York Law Journal. The agency will still need to show that the partners are employees covered by anti-discrimination law. Partners at law firms have traditionally been considered non-covered employers but the EEOC has argued that the Sidley Austin partners were employees because they never voted on firm policy and all decisions were made by a self-selecting management committee. Many of the nation’s major law firms have adopted similar management structures in recent years and the EEOC’s characterization of partners as employees has raised eyebrows throughout the profession. Elkins said depositions in the case would probably begin next month. Richards said he was looking forward to depositions and perhaps eventually receiving some compensation for what he claims was unjust treatment by Sidley Austin. In her June letter, Elkins advised the partner seeking to be severed from the case to wait for the compensation phase. “Although it is much too early in the litigation to assess whether any relief may be obtained with respect to Sidley’s change in your status,” she wrote, “you may be assured that in the event that such relief is obtained, you will not be required to accept it.”

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