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DISCOVERY IN EMPLOYMENT
DISCRIMINATION CLASS ACTIONS
by James M. Finberg and Kelly M. Dermody 1
 
Discovery in employment discrimination class actions can be time consuming, burdensome, and expensive. Both plaintiffs and defendants have an interest in taking steps to ensure that the discovery proceeds as quickly, cheaply, and efficiently as possible. Three ways to do that are: (1) the early production of computerized payroll and human resources data; (2) use of 30(b)(6) depositions; and (3) a bifurcation of pre-class certification and post-class certification discovery.
A. The Importance Of Computer Data
Most employment discrimination class actions rise or fall on the statistical evidence.2 Accordingly, the production of computerized personnel and payroll data is critical in these cases. Once both sides have had access to this data and have an opportunity to analyze it (with the assistance from experts), they can sit down and discuss resolution of the case. In realty, no attorney knows whether his or her employment discrimination case is strong or weak until the statistician has spoken.
In view of this, the first and most important request that any plaintiff must make in an employment discrimination class action is for defendant company's computerized payroll and personnel records. Most major companies today keep both payroll and human resource information in computerized form. That information can be produced relatively quickly and cheaply.
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NOTES

1 Kelly M. Dermody is a partner with Lieff, Cabraser, Heimann & Bernstein, LLP of San Francisco, California.  Ms. Dermody, together with co-counsel at Saperstein, Goldstein, Demchak & Baller, represented the plaintiffs in Butler v. Home Depot, C94 4335 SI (N.D. Cal.).
2 In Hazelwood School Dist. v. United States, 433 U.S. 299, 307-13 (1977), the United States Supreme Court found that statistical disparities of two or more standard deviations are sufficient to make a plaintiff's prima facie case.
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