Discovery in Employment Discrimination Class Actions, page 2

DISCOVERY IN EMPLOYMENT (continued)

Page 2

In cases where plaintiffs from a few facilities are seeking certification of a class involving many more facilities, some defense counsel have attempted to make the argument that the defendant is not required to, and will not, produce computer data for facilities other than those facilities of the named plaintiffs. Many courts have rejected that argument. See, e.g., Diaz v. American Tel. & Tel., 752 F.2d 1356, 1362-64 (9th Cir. 1985) (employee bringing individual employment discrimination action entitled to discovery of statistical data regarding hiring and promotion practices throughout Western Region of defendant's company to establish defendant's discriminatory practices); Duke v. University of Tex. at El, Paso, 729 F.2d 994, 996-97 (5th Cir. 1984), cert. denied, 469 U.S. 982 (1984) (plaintiffs alleging classwide sex discrimination entitled to pre-certification discovery of promotion and pay records of departments other than the two departments where named plaintiffs were employed); Trevino v. Celanese Corp., 701 F.2d 397, 405-06 (5th Cir. 1983), reh'g denied, 707 F.2d 515 (5th Cir. 1983) (observing that "[t]he imposition of unnecessary limitations on discovery is especially frowned upon in Title VII cases" and vacating protective order prohibiting discovery into company's internal organization, computer facilities, personnel record keeping system, and company purging policies for internal personnel records); Zahorik v. Cornell Univ., 98 F.R.D. 27, 32-34 (N.D.N.Y. 1983) (plaintiffs entitled to pre-certification discovery of defendant university's affirmative action plans, university-wide reports on employment at university, relevant computerized information, statistical and biographical information on employees, and sex discrimination complaints against university); Barnhart v. Safeway Stores, Inc., 60 Fair Empl. Prac. Cas. [BNA] 751, 754 (E.D. Cal. 1992) (observing that "[i]t is this court's duty to permit the parties to give the district court all the information that the district court might find relevant in making a class certification determination"); Canty v. Philip Morris U.S.A., 18 Fair Empl. Prac. Cas. [BNA] 86, 88 (E.D. Pa. 1978) (plaintiff entitled to pre-certification discovery of readily available statistical information on hiring, promotions, and discharge on a nationwide basis, with regional and divisional breakdowns). In order to determine whether a class should be certified, there needs to be some evidence about whether or not there is a pattern and practice justifying certification.

In addition to being legally questionable, the failure to provide statistical information on a classwide basis early on is also very shortsighted. First, producing statistical information is almost always cheaper, less time consuming and less burdensome than producing hard copy information. A wise defendant can most likely make a tradeoff with plaintiffs' counsel that the defendant will produce computerized information and only minimal hard copy information. Second, if the defendant has a strong case, the company should be eager to show the statistics demonstrating the strength of its case to the plaintiffs, so that the company can quickly resolve the case on terms favorable to the defendant. Conversely, if the company indeed does have a problem, as reflected in its statistics, the company will be better off to settle a case early before the plaintiffs have overcome the hurdles of class certification and summary judgment. The terms of settlement will be much less favorable to the company later, as class members become part of the case (and thus feel entitled to monetary relief) and class counsel’s hand is strengthened.

1 | 2 | 3 | 4