Monday, July 18, 2011

Fighting the Discovery Blues: Obtaining Discovery of Facts Proving Discrimination: Caution--This Is Not Light Reading.

In the battle for proof, discrimination cases require aggressive employee discovery.   The arsenal available to an employee is a combination of facts and expert opinion.  The experts I rely upon are statisticians and industrial psychologists.  Both require a good record of admissible evidence on which to base their opinions.  Both should be consulted early in the discovery plan for guidance on the kinds of information they want/need to base their opinions. 

But it is not enough for the employee’s attorney to know what to get.  He has to use the correct procedural methods under the California Code of Civil Procedure to get it.  This article focuses on the lessons taught by the Court of Appeal in the case of Life Technologies Corporation v. Joyce (July 18, 2011) 2011 DJDAR 10709.  [Hereinafter “Life Technologies”]. 

Mr.Joyce sued Life Technologies for age discrimination, and for retaliation because of his complaints of discrimination.  He sent the employer a “special interrogatory” asking for the names of all employees terminated during a two year period; their department; their dates of termination; the age of each at termination; the reason for termination; whether they were offered severance; a description of the severance benefits; a detailed statement of the reasons if severance was not offered; the names; addresses, and phone numbers of all employees not included in the RIF; and which of those remaining after the RIF were former employees of the acquiring company or the acquired company.

The employer resisted producing this information on grounds that it violated third party employees’ privacy rights.  The Court of Appeal concluded that while the information was relevant to the issue of age discrimination, in balance, the Trial Court did not do enough to protect the privacy interests of the third party employees.  The Court directed the Trial Court to modify its order compelling discovery to include safeguards, including notice to the affected third party employees of their right to object to discovery of their personal information, and notifying them of a simple procedure for their objections to be raised and heard before the court. 

The following is my list of “lessons learned” for the employee attorney in fighting the Discovery Blues:

1.        Do not let the Defense use the argument that information about termination of third party employees in similar circumstance is not relevant nor likely to lead to relevant or admissible evidence because the particular case is not a “class action.”  Life Technologies held information about other employees is relevant to an individual case of age discrimination because it shows a “pattern of discrimination” that may have included the individual suing.  It is information also relevant to “punitive damages” because it shows an ongoing practice and intent.   The Life Technologies case relied on law that a RIF discriminatorily applied is all that must be alleged to trigger the opportunity to prove statistical disparity between the younger group and the older group in the lay-off. 

2.       Anytime you seek third party employee information to show “a pattern” of discrimination, be prepared to address the privacy rights of the third party employees.  The lesson learned in Life Technologies is that protections of those privacy interest must be include by stipulation of the parties, or in the body of the Court’s order granting limited discovery (or both if obtaining a “stipulated order”.)

3.       The key privacy rights case for this stipulation and order is Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 371-372. [Hereinafter “Pioneer Electronics”].    Courts ruling on third party employee discovery (especially information out of their personnel files) must cite their consideration of this case, and that the court has “balanced” the individual’s interest of privacy against the “public policy” supporting the proof of discrimination. 

4.       The hard reality for the employee and his/her attorney is that the employee has the burden of proving that the third party employee information sought is a) needed for a compelling purpose in the case and b) cannot be obtained by “less intrusive means.”  by depositions of the employees themselves or from non-confidential sources.  El Dorado S&L  Ass’n v. Superior Court (1987) 190 Cal.Ap3d 342, 346.

5.       The scope of the discovery must be limited to just what is nec essarry to the proof of discrimination.  Britt v. Superior Court (1978) 20 Cal.3d 844; 855-864.  The privacy analysis found in the Pioneer Electronics case must be applied to EACH categoryof information sought.  Each category would therefore be the subject of separate findings and ruling. 

6.       Regarding item #5, immediately above, if you want employees’ names and addresses, you must present evidence that the persons involved are actual witnesses to the discriminatory acts.

7.       The parties and/or the Trial Court, in fashioning an order to compel the production of information, need to follow the basic guidelines of C.C.P. Sec. 1985.6 (f)(3), which provides protections to third party employees when their information is sought by subpoena (as opposed to a “special interrogatory” in Life Technologies). 

8.       Here are some of the limits and protections that be the subject of a stipulation or order to allow discovery [including those found in CCP Sec. 1985.6(e):

a.       Advise the third party employee of his or her right to object to the discovery of the personal information because, among other matters, the employee wishes to maintain the privacy of the information;

b.      Give the employee sufficient time to respond by objecting or wavier of the objection.  Probably, a sufficient time frame would at least be that stated in C.C.P. Sec. 1985.6 (b)(3). [Not less than 10 days before the date for the production of the information.]

c.       Instruct the third party employee how to object to the production of the information by the employer:  that is, that the employee is to notify the employer (i.e., the employer’s attorney); the employee attorney; the court reporter &/or designated copy service.

d.      That the reasons for objecting the production of information are to be stated in the written notice to the employer/witness/party;

e.      The Stipulation and/or Order is to state the specific protective measures to limit the use and dissemination of the information obtained.  If appropriate, the information is to be sealed from public view. 

When a third party employee delivers an objection to the employer-witness under Section 1985.6, the result is that the burden of procedure shifts to the party issuing the subpoena to obtain a court order compelling the witness to produce the information.  The employer attorney is almost always behind the effort to stop the production, and so likely has undertaken to represent the objecting third party employee.  That is, the employee attorney may anticipate a fight.  To improve the chance of winning, be “reasonable” from the start.  Voluntarily set limits.

In light of the “Life Technology” case, initially craft your subpoena in the most limited way possible.  If the employee is simply a statistic and not a witness, then do not demand names and addresses.  If the employee is however a witness and you need the address to serve the witness-employee with a subpoena, then fight to get that information, but state to the court in your motion to compel that the employee is a witness, and you need the address to serve the Section 1985.6 subpoena (assuming the employee cannot be served at the current place of employment and a “last known address” is needed.)

Of course, the question of who is a witness must sometimes be established by discovery itself, and if so, the same approach is needed.  You will have to state to the court the “probable cause” to believe the third employee saw or experienced some of the behaviors that harmed the Plaintiff, but you cannot know until you depose that employee.  In that case, your “motion to compel” the full name and last known address” will take the same approach of agreeing to limit the use and protect the confidentiality and dissemination of the private information.  Try first to work it out with opposing counsel by a stipulation for court order. 

In conclusion, if you want the information, be prepared to follow the correct procedure scrupulously.  I personally do not use the “special interrogatory” method of getting the information.  I think it is preferable to use the standard subpoena process of C.C.P. Sec. 1985.6. Do not overlook the easiest path of all in obtaining third party employee information from the employer.  IF you can obtain the employee’s signed authorization, and agree with the employee to limit the use and dissemination of the obtained information, you can avoid the need for a “motion to compel” completely.  C.C.P. Sec. 1985.6(b)(2) allows for the use of such an authorization. 


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