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Law360 (August 28, 2020, 9:32 PM EDT ) A Black former Davis Polk & Wardwell LLP associate suing the firm for racial discrimination and retaliation has to pay $2,500 in attorney fees for failing to comply with the discovery schedule in the case, a Manhattan federal judge said Thursday.
The three-paragraph order from U.S. District Judge Gregory H. Woods followed Davis Polk's motion earlier this month requesting compensation for the time and resources it said it spent dealing with plaintiff Kaloma Cardwell's failure to turn over discovery by the deadline. Cardwell has said the COVID-19 pandemic made it difficult to adhere to the schedule.
"Plaintiff has not opposed defendants' motion. Accordingly, the court grants defendants' motion for fees and costs in the amount of $2,500," Judge Woods said, directing Cardwell's counsel to pay Davis Polk no later than Oct. 1.
He noted that the requested fees were "substantially" lower than they could have been.
After Cardwell missed a deadline earlier this year and asked to push it back, Paul Weiss Rifkind Wharton & Garrison LLP partner Bruce Birenboim and associates at that firm, which is representing Davis Polk, spent a total of 82 hours dealing with ensuing briefing and negotiations, they said in a memorandum supporting their Aug. 11 motion for the fees.
Paul Weiss had to take on two extra calls, write a joint letter to the judge and attend a court proceeding, in addition to conducting "legal research, analysis, drafting, and filing," according to a declaration from Paul Weiss attorney Susanna Buergel for the defendants.
In mid-July, Cardwell had moved to modify the scheduling order, citing the onset of the pandemic in New York City around the same time as the March 2 discovery deadline, amended complaint filing deadline, and his decision to leave "on short notice" to hunker down with family in North Carolina. The unexpected global pandemic, he contended, should constitute good cause for the missed deadlines.
Cardwell also noted that he experienced "COVID-19 like symptoms for several weeks" and that a family member died during that time.
Though Cardwell said he tried to work it out with the defendants, offering in May to provide them with the missing information by July 4, they rejected his proposal, he said.
Meanwhile, the defendants said that Cardwell's attorneys had had months to prepare for the March 2 deadline and that Cardwell's departure for North Carolina in mid-March should not have affected it.
Judge Woods called a July telephone conference, during which he extended some deadlines and gave permission to Davis Polk to request the fees, according to the case docket and his Thursday order.
Cardwell, a mergers and acquisitions attorney and graduate of the University of California, Berkeley School of Law, first sued his former firm in November 2019 after getting the go-ahead from the U.S. Equal Employment Opportunity Commission.
He said that instead of addressing his concerns about discrimination at the firm, his colleagues initiated a "yearlong process to create a pretextual record and conspire to deprive plaintiff of work," which allegedly included retroactively fudging his performance reviews and stifling his development.
Davis Polk meanwhile said Cardwell's job performance was the reason for his firing.
Cardwell's attorney David Jeffries is his sole representation after Martin E. Restituyo quit the case in June citing unpaid legal fees and "divergent and irreconcilable views" on strategy.
Counsel for the defendants declined to comment Friday, and counsel for Cardwell did not immediately return requests for comment.
Cardwell is represented by David Jeffries of Jeffries Law.
Davis Polk is represented by Bruce Birenboim, Susanna Buergel, Jeh Charles Johnson and Marissa Doran of Paul Weiss Rifkind Wharton & Garrison LLP.
The case is Cardwell v. Davis Polk & Wardwell LLP et al., case number 1:19-cv-10256, in the U.S. District Court for the Southern District of New York.
--Additional reporting by Danielle Nichole Smith and Braden Campbell. Editing by Steven Edelstone.
For a reprint of this article, please contact reprints@law360.com.
