On Friday, June 6th, United States Federal Magistrate for the District of Minnesota, the Honorable Arthur Boylan, issued a protective order in the Michael Brodkorb v. Minnesota Senate lawsuit addressing how sensitive information and material should be treated now that discovery is set to proceed in earnest. For Brodkorb, getting to the heart of his gender discrimination claim has been a long time coming. Unfortunately for him, the protective order effectively renders his federal lawsuit invisible to the public. Worse, though, than one private litigant's discomfort, the protective order keeps the people of Minnesota from knowing how their elected officials handled this by now very public matter.
The reason for this is that the protective order breathtakingly allows one party to designate "confidential" anything they see fit. The only remedy to this egregious grant of discretion is for the other party to file a motion and hash it out before the Magistrate. This is called motion practice and it isn't cheap. Typically protective orders delineate those things that can reasonably be anticipated to be confidential as such, with provisions for one party to assert confidentiality as to others but with the burden of proof on that party.
The current protective order places no burden of proof, as an initial matter, on the party claiming confidentiality but, rather, allows it carte blanche and shifts the burden to the objecting party. In the posture of the current lawsuit, Brodkorb is tasked with fighting every disingenuous designation of "confidentiality" that Minnesota Senate lawyers will make, whether or not that strictly would be helpful to his case. This is grossly unfair but more to the public than to Brodkorb, as unfair as that is.
For a glimpse into the mindset of Senate counsel, hired unilaterally by the profoundly stupid then Secretary of the Senate Cal Ludeman, look at what $330 an hour attorney Dayle Nolan had to say about the protective order: "The press coverage has been fast but fact-free, and would support the idea that a protective order would be making the litigation be more normal litigation." Stupid squared.
The usual disclosures: I'm friends with Brodkorb and am an attorney, though I do not represent him in his federal lawsuit. Amy Koch is my client and friend as well. All this has been public record for some time but bears repeating for those readers of this post who may not know it. If I'm going to blog about transparency, I should try to embody it.
Put another way, the protective order keeps from, at least as an initial matter, the Minnesota public what both republican and democrat senators did in this matter. What possible public policy good could be advanced by such onerous provisions? Both the attorneys defending the lawsuit, as well as the Senate itself, are funded by the taxpayers. It seems the Magistrate gave the public no shrift, let alone short, in his decision making process. This is error.
Brodkorb has from the first moment of his lawsuit stated publicly and repeatedly that the names of the other relationships of which he is aware ought not and should not be become public during the discovery process. I understand he and his lawyers readily agreed to keep such information confidential. For anyone to suggest otherwise is dishonest and malicious.
No, the problem here is what is called in law "over breadth." Some confidentiality should obtain in this lawsuit. The problem is that what the Magistrate has ordered keeps from the public information legitimately in the public domain.
As one friend put it: "I think I'm entitled to know what Senator Senjem said to Senator Michel about this matter." Quite right. But the current protective order allows the senate to slap "confidential" on that discussion and leaves it to a private litigant with necessarily limited financial resources to strip that label from the information. I'd even put it another way: I'm entitled to know what Sen. Bakk has said to others about this lawsuit, including political calculations not covered by the attorney client privilege. I've always thought Senator Bakk should settle this lawsuit and hang it around Senator Hann's neck. But that's just lovable me.
Now then to the point: Minnesota media should intervene in this lawsuit for the sole purpose of challenging a shockingly over broad protective order. I'd feel the same way if the litigant was a democrat suing what was then a DFL controlled senate. Why do I suggest this?
Because the press, traditionally, has thought of itself as a safe keeper of the public's right to know. If I can put aside my cynicism on this point for a moment, you can too. That media in our age have become an arm of the Democratic Party should not prevent Minnesota media from doing their job in this instance. Whether bloggers would have standing to intervene is an interesting question. Maybe Powerline would like to become relevant again and explore that possibility.
The question is straightforward: why should the operations of the Minnesota Senate be exempt from public scrutiny in a public lawsuit? They should not. We simply can't depend on the meager resources of Brodkorb and his attorneys to vindicate this important point. Those are not his fish to fry, not why he filed his lawsuit. That point has, however, become directly implicated in his lawsuit.
Brodkorb's attorneys must file an appeal to the federal judge assigned to this matter, the Honorable Susan Nelson. At that point attorneys for any number of media outlets should seek permission to intervene in support of making the protective order less onerous, less broad, less an affront to those of the governed. If traditional media do not do so, I'm happy to gather a number of pro bono attorneys and solicit Aaron Rupar & City Pages to intervene. It would hardly be the first time they showed up local media. No matter how it happens, media must intervene.