Discovery in Employment Discrimination Class Actions, page 4

DISCOVERY IN EMPLOYMENT (continued)

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C. Merits Discovery

Once the class is certified, the parties must begin to focus on evidence that is needed to present the case to the jury. Because jurors want apples-to-apples comparisons between employees, the discovery in the merits phase should include hard copy and deposition discovery related both to members of the protected class who were treated adversely and to individuals of the non-protected class who were treated better. Such discovery is appropriate, even though the test in McDonnell Douglas v. Green, 411 U.S. 792, 803 (1973) need not be satisfied for each class member in a pattern and practice class action. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 359-60 (1977).

D. Personnel Files

Hard copy personnel files are the bane of an employment discrimination class action litigator's existence. If the trial of the class action involves statistical evidence and some anecdotal evidence to bring the statistics to life, see Teamsters, it should not be necessary to review of personnel files of all members of the class or of all non-class members who were treated better than class members. Inevitably, however, preparing an employment discrimination class action for trial will involve obtaining and reviewing hundreds of hard copy personnel files.

E. Informal Discovery

For plaintiffs, formal discovery has its place, but informal investigation can often be even more helpful. Such informal discovery can include discussions with former employees, government agencies (e.g. the EEOC and OFCCP), or other entities with which the company has worked in connection with its employment practices (e.g. college recruiters). Under the ABA Ethical Rules and the ethical rules of almost every state, communications with former employees of an entity are permitted. ABA Model Rule 4.2; Cal. Rule Prof. Conduct 2-100. Information received from former managers can be invaluable in developing a plaintiffs' case.

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