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It wasn't a frivolous or "merit-less" case. Before she initiated the lawsuit, she did not know what would be found in discovery. From her standpoint at the tim
by michaelochurch 11y ago
It wasn't a frivolous or "merit-less" case.
Before she initiated the lawsuit, she did not know what would be found in discovery. From her standpoint at the time, a suspicion of gender discrimination was valid. She hoped to find a "smoking gun" in discovery.
There was no smoking gun, and she was far from a sympathetic or innocent plaintiff (the affair with Mr. Nazre really killed her) so she lost.
Every bit of testimony from a Kleiner employee should be thrown out, at least on subjective matters like job performance. A person who is employed by one party or the other cannot possibly be expected to give a valid representation. No one's going to testify against someone who can end his career inside of a couple months (obviously with phony performance reviews, because no employer will admit to firing someone over inconvenient testimony).
Do I think that the jury made the right call? Sadly, I'd say "yes". I think that she did end up on the wrong side of an exclusionary culture (that may have been for reasons other than her gender; you never know if it's ethnicity or gender or health or age, the last of which can cut against young or old depending on the group) and was therefore evaluated inaccurately and unfairly. She failed to prove it, though. It would have been very different if discovery had brought forward a smoking gun that proves gendered discrimination... which didn't happen, but there's no way she could have possibly known that.
This is the thing about discrimination that most HN posters don't get. It's not like the people who are guilty of it (and there are many, along age and gender and ethnic and class lines) make it obvious. They don't. It's a silent crime. Most of the time, the victims have no idea that it is happening. They might have suspicions, but it's hard as hell to prove. Ellen Pao tried to do so and came close, but ultimately failed in proving anything conclusive.
- Natsu 11y agoMaking claims one is unable to substantiate and dragging a case through discovery is normally considered an abuse of the legal system, as we saw in, e.g. SCO vs. IBM, where they also hoped to be able to eventually find an IBM document somewhere that might prove them right. The fact that they did not find any such "smoking gun" after all that legal discovery makes me believe that they are honest, as that means they couldn't find anything at all after a lot of searching.
- pyre 11y agoA big difference is that SCO spend years in "discovery" always claiming that some sort of evidence was just around the corner. The only reason that judges allowed that charade to go on was out of an extreme abundance of caution (probably too much). > Making claims one is unable to substantiate and dragging a case through discovery is normally considered an abuse of the legal system A judge can decide to kill said "fishing expedition" too. It's not like these fishing expeditions just "happen" and once initiated are unstoppable. If it was ludicrous, then the judge should have denied it.
- Natsu 11y agoYes, but as your own post alludes, the judges didn't even shut down a SCO-level fishing expedition for... how many years was that? I lost track and I used to follow Groklaw daily. The fact that this got shut out so quickly simply points to the fact that there was essentially nothing to substantiate Pao's legal claims.
- michaelochurch 11y agoThere's a difference between an unsuccessful lawsuit and a frivolous one (i.e. one without merit, intended to harm or extort). All evidence indicates that she made the claims in good faith. The purpose of discovery in these cases is that you don't know what has been said about you. That's why, if you think you might be a victim of discrimination, you often have to sue in order to get that information. In her particular case, she found no proof. That said, she couldn't have possibly known before the discovery process that it wouldn't be there. If she were sifting through the files to find breaches of irrelevant, outdated laws and regulations, that'd be a fishing expedition. In this case, the communications that were discovered were relevant to her (justified, because even though she wasn't able to prove gender discrimination, she did prove that, except for John Doerr, they were unprofessional and horrible toward her) grievance.
- yuhong 11y agoI am thinking of removing anti-discrimination laws completely (not just to create exceptions) and allowing regulators (such as anti-trust) to impose anti-discrimination conditions on specific companies instead.