In following Brodkorb case, don't confuse gossip value with legal merit

By Sara Gullickson McGrane

Sara Gullickson McGrane is an expert in employment law with the local law firm Felhaber, Larson, Fenlon & Vogt. She is a former assistant attorney general for the state of North Dakota.

The salacious nature of Michael Brodkorb's wrongful termination lawsuit has tongues wagging and media buzzing. It is important that we keep discussion of the case grounded in reality.

Brodkorb was an at-will employee. Brodkorb, who was a top aide to then-Senate Majority Leader Amy Koch, will likely argue that he was not an at-will employee. But the fact remains that anyone hired to support an elected official may be dismissed when someone new takes over.

In this case, the person stepping in as Senate majority leader has the authority to pick his or her communications director and in no way is required to maintain the person currently in the job. Plainly and simply, it is a position of trust in which skill set, previous experience and personal judgment play a key role. Just as a new governor gets to pick his or her executive staff, so too does a Senate majority leader.

Months will pass before we see the first deposition. Procedurally, we are a long way from hearing about the facts of the case. First, the Senate may request that the case be moved to federal court — a preferable option given that it offers tighter controls on the pre-trial process.

If the case does remain in state court, the Senate will likely move to dismiss parts or all of the complaint, as many of the allegations are duplicative and potentially without merit. The court would then hear and rule on that motion.

This initial process will likely last three months, and then there would be a scheduling order. So depositions wouldn't be taken for about six months.

Don't expect hundreds of depositions. Even when depositions do occur, do not expect the court to cast a wide net when it comes to the discovery phase. The court has the authority to decide the number of depositions each side can take. Most cases permit five to seven depositions. If the plaintiff argues more are necessary, he may get 10 to 15, but rarely would more be granted.

Also, the depositions would likely be of the decisionmakers who were involved with Brodkorb's dismissal as well as individuals who allegedly were involved in similar conduct but treated differently. In this case, similar conduct would include finding individuals who were employed in leadership positions, in roles similar to Brodkorb's.

Depositions will likely be private. In this case as well as any other, the court has a duty to protect third parties who are not participating in the case. Given the media interest, the court will likely enter some kind of protective order to keep confidential information from becoming public. The court will also likely make sure that those who are deposed are truly similarly situated, so we do not see endless depositions of folks who are not going to "help" the case.

The Brodkorb case will undoubtedly become an interesting spectator sport over the next several months as the case is tried in both the legal courtroom and the court of public opinion. But we must focus on facts, and leave the innuendo at the door.

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