Discovery battles in high-stakes employment discrimination class actions are costly, contentious, and oftentimes can serve as a “game changer” that alters the entire landscape of a case. A recent decision from Magistrate Judge James C. Francis IV in Chen-Oster, et al., v. Goldman, Sachs & Co., 2013 U.S. Dist. LEXIS 148318 (S.D.N.Y. Oct. 15, 2013), highlights this the wide-ranging discovery that courts may force employers to turn over in the face of a large scale class action.
As we previously blogged about here, three female employees commenced this lawsuit in 2010 by filing a Rule 23 class action accusing Goldman of gender bias and having a “corporate culture” that allegedly favors men over women for pay and promotions. Namely, the plaintiffs contend that they have been discriminated against with respect to compensation, promotion, and performance evaluation. Id. at 2.
During the course of discovery the parties – not surprisingly – reached an impasse regarding several categories of documents which Goldman refused to produce, arguing that they were not relevant to plaintiffs’ claims. Specifically, Goldman refused to produce the following categories of documents: (1) all internal complaints made by putative class members during the discovery period that relate to compensation, promotion, or performance evaluation; (2) unredacted copies of all discoverable complaints; and (3) internal complaints made by female employees who are not in the class. Id. at 3. Plaintiffs sought their production by a motion to compel.
Prior to addressing the precise issues before him, Judge Francis – setting the tone for the rest of his decision – remarked that courts “typically apply more ‘liberal civil discovery rules’ in employment discrimination cases, giving plaintiffs ‘broader access to employers’ records in an effort to document their claims.’” Id. at 6. Judge Francis noted that even “broader discovery” is warranted when a plaintiff has asserted that a pattern or practice of discrimination exists at the organization-wide level as opposed to allegations levied against an individual supervisor. Id. at 8.
With respect to the first open issue – all internal complaints made by putative class members during the discovery period that relate to compensation, promotion, or performance evaluation – Judge Francis held that Goldman must produce this information despite Goldman’s assertion that they “have nothing to do with gender concerns.” Id. at 9. While complaints containing relevant “buzzwords” such as “sex discrimination,” “gender,” “glass ceiling,” or “women’s work” are clearly gender-related, Judge Francis held that “buzzwords are not required at the discovery stage in a disparate treatment case” given the broader scope of discovery in pattern or practice cases. Id. at 13. Attempting to strike an appropriate balance, Judge Francis held that Goldman “must provide plaintiffs any internal complaints regarding compensation, promotion, or performance review where a female who is a member of the putative class drew a comparison between herself or another putative class member and one or more of her male colleagues.” Id. at 15.
With respect to the second issue – unredacted copies of all discoverable complaints- Judge Francis also held that Goldman must provide this information to plaintiffs as it is relevant to the case and so that plaintiffs are able to “contact potential witnesses and develop anecdotal evidence of the alleged gender discrimination” Id. at 19. While Goldman objected based on the fact that producing these unredacted complaints would violate the privacy interest of its current and former employees, and therefore undermine the integrity and effectiveness of its internal complaint process, Judge Francis held that the parties’ Protective Order and Confidentiality Agreement addresses such concerns. Id. at 23-24.
With respect to the final issue – internal complaints made by female employees who are not in the class – Judge Francis held that Goldman is not required to product such information since complaints by non-class members “will be overly burdensome” and that such a burden “outweighs the scant possibility of uncovering admissible evidence.” Id. at 27. However, Judge Francis granted a partial win for plaintiffs, ordering Goldman to disclose complaints made by women who are not members of the putative class but work within the same business units as the putative class members (e.g., analysts or administrative assistants). Id. at 29. Judge Francis held that since these employees “have worked closely with the putative class members” they may be able to “provide anecdotes and information regarding their interactions with common managers, experiences utilizing the same internal complaint process, or the general culture of these divisions.” Id.
Implications For Employers
Discovery disputes are often hotly contested matters. Motions to compel can be particularly vital to a party’s case because one answer has the ability to un-hinge a massive trunk of pertinent information. In other words, “knowledge is power.” Here, given the wide-ranging discovery that Judge Francis ordered Goldman to produce – including complaints made by individuals outside the putative class – it remains to be seen what additional theories or claims plaintiffs may pursue based on the wide-ranging discovery it will receive. Stay tuned.