Media Must Intervene In Brodkorb Lawsuit

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.

It's showtime, folks.

Settle The Michael Brodkorb Lawsuit Now

I'm a close friend of Michael Brodkorb's so let's get that out of the way at the start. This hasn't stopped me from criticizing him in this space previously when I thought he was coming back politically (especially on television) a bit too soon. In fact, my friends show up here often enough they probably wish we weren't. Ask Pete Hegseth or Tom Freeman. But I try to be true, not personal, focused, not gratuitous. I don't claim always to be right: who would? Who could?

Still, it's been a year, now, since Brodkorb was fired. Earlier this year he filed a lawsuit in state court against the Minnesota Senate for, essentially, gender discrimination, coupled with some other claims. This action was removed to federal court where the matter is now pending. Half of his ten original claims have been dropped and three may be dismissed if motions by the Senate currently pending are successful. Brodkorb has, then, anywhere from two to five claims remaining with which to go forward.

Although an attorney, I have not given Brodkorb any legal advice per se and he has an extremely competent set of lawyers to advise and guide him. The point of this post is to advance an opinion solely of my own and without any advance notice to Brodkorb. It's how I work. Chatting recently with Susan Closmore at Ben & Dr. Alison Golnik's Christmas party I was invited to confer with her prior to blogging. Her point was well taken but nothing of the kind will happen. I was glad to hear her asking, though; this is an improvement over prior media management by the House Republican caucus, even if, weirdly, they're starting with their own. And trust me: conservative bloggers are not their media problem.

Any lawyer surely understands a client's thunderous yelp of "thousands for defense, not a dime for settlement." Sometimes it's actually true, warranted. Most times, just so much bravado the client needs to tell himself or her board of directors or whomever. Real life and economics eventually intrude into this high minded, self-regarding attitude toward litigation. At some point, continued litigation is not worth the candle.

That point has been reached and passed in the Brodkorb litigation. Spare me your dislike of the man personally or your ersatz repulsion over the nature of his claims (so genteel), as if knowledge of the inner-workings, so to speak, of the Minnesota legislature on either side of the aisle was news to you. As if Michael Brodkorb & Amy Koch were the first. As if.

Before his lawsuit was filed the attorney hired by Cal Ludeman, moron extraordinaire & Secretary of the Senate at the time, and without any consultation with GOP Senate leadership, billed approximately $86,000. Nice work if you can get it: lots of research, telephone calls, churning. That sort of thing. It didn't move any needle because nothing was in place against which to measure needle movement. I don't believe any bill has been examined, let alone in detail, let alone challenged to be reduced. Carte blanche comes to mind (does that credit card still exist or am I showing my age?). Such is GOP senatorial leadership post Brodkorb, post Koch. Next month they're in the minority for four years. Can that be blamed on these two as well? In my opinion, the opposite.

Fast forward to December 14th, where the Senate Rules Committee, still governed by a majority of republican senators, approved yet another bill for their mindless position of no settlement under any circumstances. Lawyers dream of such hapless clients. Not wanting to interrupt the sorrow, pace Joni Mitchell, Senate democrats went along with a hang dog expression, not having the votes to deny payment. Even if they had them, why would they?

Brodkorb has demanded $500,000 in his legal filing. No one expects him to hold out for so much. Legal bills for the Senate to date amount to slightly less than $200,000.

DFL Sen. Jim Metzen expressed concern at the Rules Committee hearing that those fees could reach half a million dollars. Or, surprise, what Brodkorb had initially demanded.

Thought experiment: between the currently paid $190,000 (or $180,000 depending on which local newspaper you read, or Ted Baxter (Pat Kessler) who reported $200,000) and the fear of half a million dollars for legal fees, what amount could be used to offer a settlement?

I don't know. You don't know. Pathetic GOP senate leadership doesn't know.

Actually I do know: between 200k and 500k is three hundred k. Why spend that on file churning lawyers at the end of which remains a federal lawsuit? How does that ignorant grand-standing help the taxpayer? It doesn't. For the slow witted, I'm not suggesting Brodkorb should be paid 300K. I'm suggesting there is room for movement, for settlement. I tried once, valiantly. Contact Sen. Juliane Ortmann for further details.

One actually has to read it in print: Sen. Dave Senjem said that if more legal fees weren't paid this matter might appear to be a cover up. Where does one go to become this stupid? Does he have a certificate hanging on his wall?

He told MPR's Tim Pugmire that: "A decision like this is precedent setting, and if we don't stand on our heels and put some cement around them on this, we're going to set a precedent that's going to be with this Senate for decades to come."

Senator, one is knocked back on their heels; they don't stand on them. Cement? Are you former union or what? And what precedent would be set by settling? Keeping your friends' affairs secret, except they're not, really? And "for decades to come?"

Ridiculous yesterday man former Sen. Geoff Michel told the Pioneer Press's Megan Boldt that: "If more than half the claims have been dropped and dismissed, I call that winning." A loser would but be careful of discovery, just the same. Being under oath is no one's idea of winning. He would not be alone, of course. Prisoner's dilemma.

If Brodkorb pulls the deposition trigger, look for these gutless wonders to fashion a deal. Local media will report process but probably would be squeamish to report substance. I would share that feeling.

Settle with Brodkorb to make him go away, at least on the litigation front. This matter needs to be put behind the Minnesota republican party, the Minnesota senate, behind every Minnesotan. Sen. Senjem has made whatever small point he wanted. Spending more taxpayer money on lawyers in order to continue to do so is misguided at best, a self-indulgence to mask lack of leadership at worst.


Photo credit: Terry Gydesen of MinnPost.