Discovery in Employment Discrimination Class Actions, page 3

DISCOVERY IN EMPLOYMENT (continued)

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B. Pre-Class-Certification Discovery

Whether a class is certified, and the geographic and temporal scope of the class certified, will have a tremendous impact on the shape of the trial and thus the discovery needed to prepare for trial. Accordingly, it is logical to bifurcate discovery in employment discrimination class actions into two phases: pre-class-certification discovery and post-class certification discovery. The pre-class-certification discovery should focus on computerized data, organization charts, forms, policy manuals, employment manuals, training manuals and other documents having general application, 30(b)(6) depositions, and samples of other types of information. Scorched earth document discovery should wait until after class certification. In addition, class certification depositions should be limited in scope, and not include such issues as damages or individual issues.

During the class certification discovery phase, the plaintiffs' attorney should endeavor to discover how the company is structured, who is involved in decision making, and how the decisions are made. The critical documents for plaintiffs to obtain during this phase include organization charts, copies of generic application forms, copies of generic evaluation forms, copies of all orientation materials, copies of training materials given to managers regarding human resources issues, the company's policy manuals and employee handbooks, civil complaints, and EEOC charges. The discovery at this stage should be aimed at getting an overview of how things work, not to analyze the specifics of each and every employment decision.

Pre-class-certification deposition discovery can be streamlined in the same fashion. By asking the company to designate the most knowledgeable people about its personnel practices pursuant to Federal Rule of Civil Procedure 30(b)(6), the plaintiffs' attorneys can get the company on record about the company's policies and practices. That, combined with depositions of a few other managers that focus on policies and practices, but not on the merits of individual claims, should eliminate the need for a large number of multi-day depositions. In Butler v. Home Depot, for example, the pre-class-certification depositions of Home Depot's managers, with few exceptions, took no more than one day each.

During the class-certification discovery phase, there is a tension between allowing enough discovery so that both sides can present sufficient evidence as to whether or not certification is or is not appropriate, and unduly burdening the parties. Focusing on the production of computer data and forms, manuals and documents of general applicability, and a limited number of depositions focused on policies and practices generally without exhaustive investigation of specifics, can achieve the former without causing the latter.

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