Charney Court Sets Pretrial Schedule; Approves Confidentiality Stipulation

New York County Supreme Court Justice Bernard J. Fried has issued a detailed schedule for the pretrial process in the now-combined lawsuits involving gay attorney Aaron Brett Charney and his former employer, the law firm of Sullivan & Cromwell. The parties had failed to agree on the details of the pretrial schedule, and Charney’s lawyers submitted a proposal schedule to the court during June. The schedule Justice Fried issued on June 26, if ultimately adhered to by the parties, provides almost a year for the discovery process to unfold, with a target date of next April 18 to conclude discovery. A trial would not be scheduled until after discovery is completed.

Charney filed his lawsuit against Sullivan & Cromwell on January 16, charging sexual orientation discrimination and retaliation. Charney initiated his lawsuit with a barrage of publicity on the internet, which quickly spread to the print press. Sullivan & Cromwell discharged Charney and filed a countersuit on February 1. Initial wrangling over motions to dismiss have narrowed down the scope of both cases, which have been combined before Justice Fried.

Under Fried’s schedule, initial pretrial discovery demands have to be made on or before July 20, although they can be supplemented by later discovery demands, depending on what initial discovery turns up in the way of information. Interrogatories (written questions seeking written responses) must be sent to the opposing parties by September 7. Fried is limiting each side to no more than 25 interrogatories. If they don’t use up all 25 at once, they can generate more written questions later in the discovery process, but no later than 45 days before next April 18.

Any depositions (in-person questioning of potential witnesses under oath by attorneys for the parties) would begin no earlier than October 15. Evidently Justice Fried is interested in moving the case along, as he decreed that any "dispositive motions" (pretrial motions seeking summary judgment on the merits of the case) must be filed with the court by May 30, 2008, just six weeks after the close of discovery, and that the attorneys are to attend a "compliance conference" on September 12 to ensure that the pretrial activity is going along on schedule.

Because Charney is claiming compensation for emotional injuries, he must submit to a mental examination. Fried specified that such examination should take place after any deposition of Charney is completed, but no later than next February 18. Once discovery is finished and any motions are submitted, the case will be ready for a trial, if one is needed. Although Justice Fried could theoretically dispose of the case by granting a motion for summary judgment to one side or the other, that would be an unlikely outcome in a case with such heavily contested facts.

Justice Fried also disposed of two other matters in the Charney cases on June 26, which both appear to relate mainly to S&C’s concerns about the continued public discussion, both on-line and in the traditional media, about the claims being raised in these cases.

In one action, he denied a written request by Gera Grinberg’s attorney, Gary Ireland, to have “certain deposition transcripts” unsealed.  S&C had submitted a letter opposing the request.

Attorney Grinberg worked closely with Aaron Charney as a fellow associate at S&C on a variety of client matters, and their close working relationship seems to have sparked the incidents upon which Charney bases his lawsuit.  Grinberg, and an attorney that S&C hired to represent him, Edward Gallion, were both present at the meeting between Charney and S&C partners Vince DiBlasi and David Braff on January 31, the day before S&C discharged and sued Charney. 

There is considerable dispute between Charney and S&C about what was said at that meeting, with Charney claiming that the only written record, which would back up his account, was made by Grinberg, who then turned his notes over to Gallion at that time for safekeeping.  Charney has alleged that the Grinberg notes were improperly destroyed as part of a conspiracy between S&C and Gallion.. Amidst the skirmishing over motions to dismiss, Grinberg and Gallion were submitted to depositions focused on what occurred at that meeting, but the transcripts have been sealed, and S&C’s lawyers criticized Charney for relying on and referring to that testimony in his amended complaint. 

S&C placed Grinberg on paid leave after discharging Charney, and is no longer employed by the firm.  His attorney was seeking to find out what Gallion said in his deposition, to which Grinberg, as a non-party to the case, does not have access, as Grinberg considers his own future course of action.

In his June 26 order, Justice Fried provided no explanation for why the deposition must remain sealed, other than that the request to unseal it was “without merit.”  Did Gallion say anything that would confirm the charge that he was collaborating with S&C to suppress the potentially explosive contents of the January 31 meeting?

Justice Fried’s other action on June 26 was to approve a stipulation (agreement) between the parties on the issue of confidentiality, in the form of a complicated ten-page document governing the treatment of information produced during discovery in the case. Either party can designate any document or other information as confidential, and the opposing party can oppose such designation, the matter to be resolved by the court. Anybody drawn into the case as an expert witness, court reporter, or other person not already bound by the confidentiality requirements imposed by the lawyers’ Code of Professional Responsibility will have to sign a special form signifying that they have read the confidentiality document and agree to abide by its requirements.

Justice Fried’s approval of this stipulation will allow S&C to keep as much of the information that makes this story so interesting out of the public eye as it possibly can, since the stipulation also applies, with limited exceptions, to the conduct of the trial and afterwards, with provisions governing the return or destruction of any confidential documents and strict rules about references to or quotations from them during court proceedings or in papers submitted to the court.

From the earliest stages of this lawsuit, S&C has shown great concern over public exposure of its inner workings, and its discharge and countersuit against Charney were premised largely on the publicity campaign he waged when he filed the lawsuit, as well as his leaking of documents to the Wall Street Journal that were mentioned in an embarrassing article about morale problems at the firm. By getting Charney’s agreement and the judge’s approval of the confidentiality stipulation, S&C may succeed in keeping the bloggers and the press from access to the kind of materials that it successfully labored to get removed from Charney’s original complaint.