Will Employer’s Attempt to Keep Ellen Pao Discrimination Trial Secret Work?

Stop Spectator AccessNearly three years after a former junior-partner at venture capital firm Kleiner Perkins Caufied & Byers LLC filed her lawsuit alleging gender discrimination and retaliation, the jury trial appears set to begin next week.

As a general matter, jury trials of civil discrimination claims are presumptively open to the public.   This right of the public to attend civil trials is rooted in democratic principles as articulated in 1884 by Oliver Wendell Holmes who was then a justice on the Massachusetts Supreme Court:

“It is desirable that the trial of [civil] causes should take place under the public eye, … not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.”

Cowley v. Pulsifer, 137 Mass. 392 (1884).

In a motion filed yesterday, Kleiner Perkins argues that the right of the media and public to attend these types of civil jury trials is not absolute. Citing the right to privacy of non-party employees and the “injurious effects” of disclosing its confidential and commercially valuable business information, Kleiner Perkins has asked the judge to prevent spectators from watching certain parts of the jury trial.

Specifically, Kleiner Perkins has asked that the Court exclude

“spectators from the courtroom when evidence is presented regarding (1) third-party employee compensation and performance . . . (2) KPCB’s confidential/proprietary business information and financial performance; and (3) investment financial information and performance regarding third-party Managing LLC’s funds.”

To read the full motion click here.

Opposition Likely to Motion to Exclude Spectators

Even if for some reason Ellen Pao’s legal team decides not to oppose Kleiner Perkins’ motion to exclude spectators from the courtroom, I think it is safe to predict that the media will ask to intervene to oppose the motion. This case has been widely followed in the media and given the amount of coverage the public interest in the case seems clear.

Assuming this case does not settle, I will be providing updates on this issue of public access to the jury trial as well as the case more generally as the case proceeds.


Will Employer’s Attempt to Keep Ellen Pao Discrimination Trial Secret Work? — 4 Comments

  1. Lorene –

    I think this is outrageous! I’ve never heard of a discrimination case in court being closed to the public. That’s part of the price you pay for taking your case to trial.

    Also, Kleiner Perkins’s exclusion criteria are extremely vague and would be very difficult to apply. The Court (and the jury) would be hopelessly confused and obstructed, and the trial would be constantly interrupted and delayed.

    I trust the Court will not be drawn into such a morass.


    • John: The court did not grant Kleiner Perkins’s motion in its entirety but is trying (correctly so in my view) to balance the privacy rights of individuals not involved in this lawsuit with the public’s right to attend these trials. The court is also attempting to strike the right balance in protecting Kleiner Perkins’s trade secrets. Thanks for reading and weighing in with your views. Lorene

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