Secret list was released in error, Brodkorb's lawyers say

Fired Senate staffer Michael Brodkorb's list of those he accused of engaging in "intimate sexual relationships" at the State Capitol was made public by his law firms' mistake, removed from circulation in less than an hour and resulted in an evening plea to a judge to block the media from publishing the names, lawyers for Brodkorb's side said Thursday.

Those names, buttressing Brodkorb's claim that he was terminated for having an affair when many others were not, have not become public. For now, Brodkorb's lawyers in his wrongful-termination lawsuit against the Minnesota Senate seek to show that this was an unintended error, not a strategic move to raise the stakes.

A hearing is scheduled for next Thursday in the matter of Brodkorb's list. Senate lawyers say the release of the list was intentional and has so poisoned the case with salacious accusations that it should be thrown out — or at least the names should never be accepted into evidence. Brodkorb's lawyers are trying to save the suit by showing that while they made a big mistake, they immediately set out to fix the problem.

"What this boils down to is a simple, regrettable error that was caught and corrected within minutes," lawyers for the Brodkorb side said in court filings Thursday.

Brodkorb was a top assistant to former GOP Senate Majority Leader Amy Koch in December 2011 when other Senate leaders confronted Koch about an affair between the two. Koch hung on to her Senate seat but relinquished her leadership position. Brodkorb was subsequently fired by the secretary of the Senate.

Brodkorb sued and in a deposition gave the names of 10 former senators, one current senator and six staff members who he alleged had similar relationships but were not fired. That list was supposed to remain private or "under seal," as opposed to other motions and arguments that are filed publicly.

In Thursday's arguments, the lawyers said Brodkorb's law firms made the error on the afternoon of July 3, as they were rushing to meet a deadline for filing court documents. A legal assistant put the memorandums and exhibits together and sent them to the court, apparently without knowing that the exhibit containing Brodkorb's list was to have remained private.

Calls from two media outlets — the Associated Press and Minnesota Public Radio — alerted lawyers that the electronic files had been seen by reporters during their brief online life. Attorney Phil Villaume, then Brodkorb's attorney, said he tried to persuade a federal magistrate judge in an evening conference call to prohibit news organizations from publishing the names on the list.

The judge, Arthur Boylan, declined to do so. A week later, when the AP was preparing a story on the list, Villaume renewed his request. Boylan said blocking the story by court order would constitute "prior restraint," according to an account prepared by the Brodkorb side. In the subsequent AP story, reporters discussed the importance of the list to Brodkorb's legal claim and contacted some of those on the list but decided not to reveal the names.

Villaume has since withdrawn from the case. Lawyers for the Senate have argued that the release of such titillating details was of a piece with the public, political nature of Brodkorb's claim. "It is a pattern of behavior that suggests a deliberate strategy of trying this case before the media rather than the Court, without regard to innocent people hurt along the way," the Senate lawyers claimed.