Pao Vs. Kleiner Defense Rests Its Case, Showcasing A Different Side Of The Story

Yesterday afternoon, the legal team representing venture capital firm Kleiner Perkins Caufield & Byers rested its case in the Ellen Pao Vs. Kleiner Perkins trial, bringing the fourth full week in the courtroom to a close. The end of the trial is now clearly in sight, with only the closing arguments and the jury deliberations remaining.
Over the past several days, Kleiner’s head lawyer Lynne Hermle has mounted an assertive defense against Pao’s claims of gender discrimination and retaliation. Hermle called a host of witnesses to the stand, most of them longtime Kleiner partners, and worked to paint a very different picture from the one provided by Pao of the specific events in question, as well as the overall atmosphere at the vaunted Sand Hill Road firm.
There is no question that the gender ratio in technology venture capital leaves much to be desired, and Pao’s lawsuit and testimony has been a damning and often convincing portrayal of alleged sexism in the industry. But in recent days the defense put forth by Hermle has palpably slowed the momentum on the plaintiff’s side, and cast some of Pao’s vivid claims into a more murky shade of gray.
In the end, this case will have to simply come down to who the jury believes: Ellen Pao, or her former colleagues at Kleiner. Here are a few key highlights from the events of this past week.

Komisar’s take

Perhaps the most crucial testimony of a week full of compelling witnesses came from Randy Komisar, the Kleiner Perkins partner who was involved in some of the most attention-grabbing anecdotes of Pao’s legal complaint (aside from Ajit Nazre, the former Kleiner partner who was dismissed from the firm after having a consensual affair with Pao and making unwanted advances to Trae Vassallo. Nazre was not called as a witness by either the plaintiff or the defense.)
It was Komisar who was accused in Pao’s complaint of asking Pao to a Saturday night dinner and emphasizing the fact that his wife would be out of town. It was also Komisar who gave Pao a Valentine’s Day 2007 gift of Book of Longing, a book by Leonard Cohen that includes some sexually-themed poems and nude drawings. It was later Komisar who took a board seat at RPX, a position that Pao’s legal team argues could have gone to her instead, if she were not allegedly discriminated against by Komisar and Kleiner partner John Doerr for taking maternity leave.
All of these anecdotes were positioned in Pao’s lawsuit and testimony as illustrative examples of the offensive and uncomfortable treatment that she as a woman was subjected to while trying to work her way up at Kleiner. On the witness stand on Tuesday, however, Randy Komisar provided a very different perspective on these events.

The innocuous Book Of Longing?

Komisar said he decided to purchase Book Of Longing for Pao after hearing Cohen speak about his experience writing it in a Buddhist monastery in an interview on NPR. Komisar said that he and Pao spoke frequently about Komisar’s own Buddhist faith, and Pao had previously given Komisar several small Buddhism-themed gifts, the most recent of which was for Christmas 2006.
“I felt guilty, as she’d given me two very nice gifts,” Komisar said, noting that the next holiday after Christmas was Valentine’s Day, and it was something of a Kleiner tradition to give out casual Valentine’s Day gifts. “I knew that Ellen was quick to take a slight, and I was concerned she would see that I wasn’t reciprocating.”
The book was purchased in early February 2007 by Komisar’s wife, Deb, who also had a friendly relationship with Pao, according to an Amazon receipt provided as evidence. As for the racy content, Komisar said he never read the book himself before gifting it to Pao. “This was a gift I felt comfortable with. My wife is my trusted advisor. She knew Ellen, and she said this was a good gift to give,” he said. “It was not something I was going to read cover to cover.”
Hermle asked what Komisar said when giving the book to Pao. “I can’t remember specifically. I probably explained something about Leonard Cohen,” he said. Afterward, Hermle asked, did she say she was uncomfortable or act any differently? “Not at all,” Komisar said. “She’d come in [to my office] and talk about her ex-boyfriend, or her ex-husband. She’d stop by and show me her cowboy boots. It was a friendly and collegial relationship.”

The dinner date that wasn’t

And the dinner invitation wasn’t really an invitation at all, according to Komisar’s testimony. The discussion in question occurred April 2007, as a number of Kleiner staffers were making small talk together before a regular Monday morning partner meeting. The weekend before, Komisar’s wife was at a conference in England that she attends annually.
“This took place in a very public room, in front of a number of partners… It was casual banter all the way around the room. I asked Ellen how her weekend was, and she said she had to come into the office on Saturday,” Komisar said, adding that at the time Pao lived in San Francisco some 40 miles away from Kleiner’s office, while Komisar’s home was more nearby in Portola Valley. “I said, ‘Oh, Deb was out of town, we could have had dinner.'”
Hermle then asked whether Pao indicated at that time, or at any time thereafter, that the conversation had made her uncomfortable. “Never,” Komisar said.

The “betrayal”

As for the RPX board seat, Hermle displayed as evidence a number of emails that indicated Pao was happy with Komisar taking the seat. “I wholeheartedly support your suggestion and agree with your recommendation that Randy be our board member,” one email from Pao to John Doerr read. Another said, “I have no problem with a Randy board seat at all… I’m very happy with the outcome and have absolutely no issue with it. I don’t feel a need to discuss it more unless you do.”
Komisar also testified that he never mentioned Pao’s maternity leave to her in regards to the RPX board seat, and that it was only Pao who brought up the subject in an email. Pao went on to take a “board observer” spot at RPX at Komisar’s invitation. Months later, he said on the witness stand, Pao began maneuvering to replace Komisar on RPX’s board. It was because of this that their friendly working relationship ended. “I felt it was a betrayal of confidence to talk to my partners about how to remove me, to politick behind my back,” he said. “I thought that was unforgivable.”
In the end, both Komisar and Pao had clarity and conviction in their respective turns on the witness stand. It is up to the jury to decide who to believe.

The women of Kleiner

Kleiner also called a number of its prominent women partners to the stand, in an effort to show that it is indeed possible for women to succeed and thrive at the firm. Though the women who took the stand this week didn’t work terribly closely with Pao, they all offered a markedly different perspective of the environment for females at Kleiner.

The Internet Queen

The first was Mary Meeker, the renowned former Wall Street analyst who has been called “the queen of the Internet” for her widely-read annual reports on the digital industry. You can read a full rundown of her testimony here. Meeker projected an air of charisma and confidence on the witness stand, and testified that Kleiner is more than hospitable to all genders. “When I look at the venture capital business and look at the players in the industry, Kleiner Perkins is the best place to be a woman in the business,” she said.
And as for the all-male ski trip, Meeker testified that she actually was invited to join as well, though she did not ultimately attend. She had also been present at one of the dinners held at Al Gore’s house, she said, and has attended a number of female-only events during her time at Kleiner.

de Baubigny and the “dreaded” notebook

On Friday, Kleiner partner Juliet de Baubigny took the stand and testified about her nearly 15 years career working at the firm. She said that she has never felt discriminated against as a woman, and that her experience working with Pao was “mixed.” According to de Baubigny, who heads up recruiting for Kleiner portfolio companies and also manages many operational aspects of the firm, she recruited Ellen Pao to join the firm, but soon became worried that Pao had “interpersonal issues that left a cloud.”
Pao would request to meet with de Baubigny for coffee, she testified, and during these meetings Pao would frequently complain about her coworkers. During questioning, Hermle listed a total of 11 names of current and former Kleiner staffers, and de Baubigny responded by summarizing Pao’s complaints about each person — a frequent refrain was that others were hogging credit, or excluding Pao from meetings or information. No other Kleiner staffers came to de Baubigny with such complaints, she said.
“I began to dread when she came to my office with a notebook and want to talk about things,” de Baubigny said.

“Early in the cycle” for women in VC

Like Meeker and de Baubigny, Kleiner general partner Beth Seidenberg’s testimony on Friday also gave a positive look at Kleiner from a woman’s perspective. A former medical researcher, Dr. Seidenberg says she joined the venture firm after interviewing with several firms because “the people you work with are very important, and the people I met at Kleiner Perkins were very focused on doing big and important things.”
While she acknowledged that both Kleiner and the broader venture capital industry still have a lot of work to do when it comes to bringing women into the fold, Seidenberg says she’s optimistic for the future. She compared the situation to the changes which have taken place in recent decades in the medical field, noting, “When I started there were three women in my medical school program, now the balance is better.” She also said that the lack of women in VC is a frequent topic at Kleiner Perkins as a whole, as she and other members of the firm are concerned about changing the ratio for the better.
In response to a juror question regarding the slow pace of change on the diversity front, Seidenberg said she believes we’re “early in the cycle,” and that once universities start graduating more women with backgrounds in science and mathematics, more will funnel into the industry.
In an odd turn, rather than work to poke holes in Seidenberg’s testimony on Kleiner’s environment for women, Pao’s attorney Alan Exelrod ended his cross examination of Seidenberg abruptly. “Dr. Seidenberg, I’m at a loss for words,” he said. “I have no questions.”
And with that, on Friday afternoon, Kleiner’s final witness left the stand and the defense rested its case.

High stakes, uncertain ending

Since first filing her suit in May 2012, Ellen Pao has been requesting to be compensated for both the wages she allegedly missed out on due to discrimination and retaliation, as well as for additional punitive damages. (Her legal team has argued that her lost wages and income amount to $16 million, and punitive damages are an unspecified amount on top of that.)
This week Harold Kahn, the Superior Court judge overseeing the case, indicated that he was not entirely convinced that Ellen Pao should be eligible for punitive damages at all, and considered throwing out that part of the case altogether. As Recode reported, in an after-hours meeting with the trial’s lawyers on Tuesday evening, Kahn asked, “What evidence is there of malice, fraud or oppression (the standard for punitive damages in California law) by someone at Kleiner Perkins? …I am having trouble myself right now articulating what a reasonable juror would find that constitutes malice, fraud or oppression.”
Ultimately, though, Kahn ruled today that Pao may indeed seek punitive damages after all. This means that if she wins, Pao stands to net well into the 8 figures in terms of restitution, or more. If she loses, though, she may have to pay Kleiner Perkins’ court costs along with her own. As this case has played out for nearly three years, that is likely to be a significant sum.
Closing arguments are set to take place next week on Tuesday, and after that, the jury will enter deliberations and cast its verdict. At this point, the verdict still feels like it could easily go either way — and the stakes still seem as high as ever.

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