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Judge Says Pao Needs to Do Better to Prove Case for Punitive Damages

"This is troubling me."

Courtroom sketch by Vicki Behringer.

The judge presiding over Ellen Pao’s gender discrimination and harassment trial versus her former employer Kleiner Perkins Caufield & Byers thinks her side has not established a case for punitive damages, he said today.

At the end of the day, after the jury and the crowds had left, the judge gathered back in court with lawyers from both sides for an on-the-record discussion of some of Kleiner Perkins’ concerns in the case.

Kleiner Perkins had filed two “motions for non-suit” following the completion of the plaintiff’s weeks-long argument — basically, a standard procedural task. One was on the grounds of punitive damages and another on the recurring issue of damages based on stock.

And in a surprise, Judge Harold Kahn said he is actually considering granting the motion for non-suit over punitive damages, because he doesn’t think Pao’s side has presented adequate evidence. Keep in mind: This would not throw out the entire case; Pao could still win the $16 million in damages she’s asked for, just not unspecified punitive damages.

“What evidence is there of malice, fraud or oppression (the standard for punitive damages in California law) by someone at Kleiner Perkins?” Kahn asked.

Pao’s lawyer Alan Exelrod replied, “Despicable conduct runs through this case. For example, there’s the basic causes of action itself — failure to promote women to partners. That conduct alone could be viewed with appropriate malice.”

“I’m gonna cut to the chase here,” Kahn said. “This is troubling me.” He asked Exelrod to write down on paper within the next 24 hours the reasons Pao deserved punitive damages based on case law in the civil rights area of employment law.

“I am having trouble myself right now articulating what a reasonable juror would find that constitutes malice, fraud or oppression,” Kahn said.

Exelrod argued to Kahn that Kleiner Perkins partners are “highly exaggerating Ms. Pao’s interpersonal issues.” “This whole case is about emails she sent to her admin or interactions with Matt Murphy,” he said. “You heard Mr. Komisar talk about betraying him. It’s all about her personality.”

Kahn replied, “Malice, fraud or oppression has to be based on the facts as they actually occurred to the parties involved. To me, I look at this case in a very, very legalistic way. Has Ms. Pao proved each of her claims by a proponderance of the evidence, and has she proved her damages, and has Kleiner Perkins proved any offset of those damages.”

Exelrod persisted, saying that he’d proved that Chi-Hua Chien and Ajit Nazre, two partners hostile to Pao, gave input on a negative performance review that was “covered up.” Kahn asked for the pertinent law in the case. Exelrod asked for more than 24 hours to lay it out.

Kahn replied, “I’m a realist. I’d rather you give me your best shot and me take my best shot during the time that really matters.”

This article originally appeared on Recode.net.