Workplace Class Action Blog

Initial Application Of The SCOTUS Dukes Ruling To Class Action Discovery Dispute

Posted in Class Action Litigation

By Gerald L. Maatman, Jr. and Matthew Gagnon

Rejecting an employer’s bid to use the U.S. Supreme Court’s recent decision in Dukes, et al. v. Wal-Mart Stores, Inc. to shield it from class-related discovery requests, Magistrate Judge Maria-Elana James of the U.S. District Court for the Northern District of California ordered Deere & Co. and John Deere Landscapes, Inc., to disclose the contact information of all putative class members in a nationwide gender discrimination in hiring lawsuit in Artis, et al. v. Deere & Co., Case No. 10-CV-5289 (N.D. Cal. June 29, 2011) [link to ruling]. In Dukes, the SCOTUS issued a landmark ruling on various facets of class certification in employment discrimination lawsuits, which we analyzed on the date of the decision here. Artis is significant as it is one of the first rulings to apply Dukes in an on-going class action lawsuit.

In a lawsuit filed under Title VII and the California Fair Employment and Housing Act, the plaintiff in Artis sought certification under Rule 23 of a class of all female job applicants and deterred applicants for entry level sales, customer service and shipping and receiving positions in Deere’s Equipment Operations divisions who have been or may be denied employment by Defendants. She alleged the class included hundreds of former and current female applicants and deterred applicants as well as future applicants and deterred applicants. In this respect, the theories in Artis were one step removed from Dukes, which alleged class-wide discrimination in pay and promotions.

In a discovery request, plaintiff’s counsel sought job applications and other sources of names, addresses, telephone numbers, and email addresses of putative class members and percipient witnesses. Plaintiff’s counsel argued that she was entitled to this discovery in order to fully develop the evidentiary record in an effort to substantiate her class allegations and meet the requirements of Rule 23. Defendants resisted, asserting that pursuant to Dukes, et al. v. Wal-Mart Stores, the individualized information possessed by class members was irrelevant and that the plaintiff was required to identify a company-wide evaluation method that could be charged with discrimination or offer significant proof of a general policy of bias — a showing the defense asserted the plaintiff was unable to make.

In rejecting the use of Dukes to limit plaintiff’s discovery requests, the Court determined that the plaintiff made a prima facie showing under Rule 23. As to the first element of the rule, she alleged the class included hundreds of former and current female applicants and deterred applicants as well as future applicants and deterred applicants. The second element was satisfied by her allegations that defendants provided female applicants and potential applicants discriminatory, inconsistent, or inaccurate statements about the job requirements and qualifications. Likewise, her allegation that her claim of injury is typical of the class met the third element. Finally, the Court found that the prima facie requirement was completed by the plaintiff’s allegation that the employers engaged “in a pattern or practice of discriminating against female applicants.” Id at. 4. The Court concluded that given the plaintiff’s satisfaction of these requirements, the key issue was whether “discovery of the requested contact information will likely provide plaintiff an opportunity to present evidence as to whether a class action is maintainable.” Id.

Noting first that the disclosure of names, addresses, and telephone numbers is a common practice in the context of class actions, the Court held the plaintiff was entitled to the contact information of putative class members. The Court reasoned that the information was needed to substantiate class allegations and meet the certification requirements of Rule 23. The contact information and contact with potential class members was necessary to determine whether the plaintiff’s claims were typical of the class, and ultimately whether the suit could be maintained as a class action.

In so holding, the Court rejected the defense arguments pursuant to Dukes, et al. v. Wal-Mart Stores because they were focused on whether the plaintiff would ultimately be able to satisfy her burden of showing that a class action was proper under Rule 23. The Court determined that this question was not pertinent because the plaintiff’s burden was merely to make a prima facie showing that the Rule 23 class certification requirements were met, which she had done. Moreover, the defense assertion that the plaintiff must identify a company-wide evaluation method or significant proof of a general policy of bias went to the merits of the plaintiff’s claims, which were not appropriately addressed in the context of the discovery dispute. Furthermore, because such information was most likely in the possession of the employers, the Court held that it was necessary to give the plaintiff the opportunity to propound enough discovery to obtain the material. Id. at 5.

As to the employers’ argument that production of the requested discovery would violate the right to privacy of other applicants, the Court acknowledged that the constitutional right to privacy was implicated. Hence, the party seeking discovery must show a compelling need for discovery that is so strong as to outweigh the privacy right when the two competing interests are balanced. Nonetheless, the Court found that the privacy interests at stake in the names, addresses, and telephone numbers “must be distinguished from those more intimate privacy interests such as compelled disclosure of medical records and personal histories.” Id. at 6.  Specifically, the Court ruled that although the putative class members had a legally protected interest in the privacy of their contact information and a reasonable expectation of privacy, the information sought in this case was “not particularly sensitive,” and the employers’ privacy objections must yield to the plaintiff’s request for the information as the putative class members might possess relevant discoverable information about issues dealing with the plaintiff’s gender bias claims, as well as other class certification issues. Id.

Finally, the Court reasoned that the parties could craft a protective order limiting the use of any contact information to the parties involved in this litigation, and thus ordered that the discovery be produced to the plaintiff’s counsel only and that it be used solely in this litigation. Id. at 6-7.

Artis is significant to employers. For those who may have believed that employers could cite Dukes and avoid class-wide discovery where “Dukes-like” certification theories are advanced by plaintiffs, Artis suggests that the task of the defense is not so easy. At the same time, Artis shows that Dukes may be a sword for use in approaching the defense of class action litigation in nuanced and varied ways. The Court in Artis did not reject the use of Dukes to limit discovery, but rather held that the plaintiff has alleged sufficient class theories to get around a Dukes-derivative defense to discovery. This suggests that class action litigation over the coming years will see wide-ranging fights over the meaning of Dukes for many facets of workplace class action litigation.