As our blog readers may remember, the fourth amended complaint filed by plaintiffs in Dukes v. Wal-Mart Stores, Inc., No. 3:01-CV-02252 (N.D. Cal.), alleges class-based gender discrimination claims very similar to those originally alleged (before plaintiffs suffered their defeat before the U.S. Supreme Court in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)), but with two important changes: (i) the plaintiffs narrowed the scope of the class claims to current and former female employees who worked in Wal-Mart regions centered in California only; and (ii) the plaintiffs attempted to establish commonality by alleging that the source of bias was a “discrete group of California District and Regional Managers who provided common direction, oversight, and approval of the challenged discriminatory pay and promotion practices.”
Following denial of Wal-Mart’s motion to dismiss (discussed in a previous post here), and denial of Wal-Mart’s request for certification of an interlocutory appeal following the same (discussed in a previous post here), the parties are now preparing for class certification briefing. Although extensive discovery had been completed prior to the filing of plaintiffs’ fourth amended complaint, and plaintiffs had allegedly informed the court that they were already in possession of sufficient evidence to proceed with class certification briefing, plaintiffs sought additional discovery, and disputes have ensued. In correspondence dated December 18, 2012 to Magistrate Judge Jacqueline Scott Corley, the parties jointly submitted two discovery issues related to class certification discovery: (i) the geographic scope of discovery; and (ii) the reopening of pre-certification discovery.
Both issues and the Court’s disposition of the issues frame the key challenges faced by employers in dealing with extensive discovery in employment discrimination class action litigation.
Geographic Scope Of Discovery
In the its briefing, Wal-Mart attempted to limit the geographic scope of discovery by agreeing to produce data as of a date certain — June 2004. Dukes v. Wal-Mart Stores, Inc., No. 3:01-CV-02252, Dkt. 827 (N.D. Cal. Dec. 21, 2012). The company argued that this “snapshot” approach was necessary because the organizational alignment of stores changed frequently throughout the putative class period (of December 1998 through June 2004), the date would capture close to two-thirds of the relevant stores that fell within the “California Regions” during the class period, producing information related to individuals who were employed at stores that fall outside the proposed class definition for significant periods of time would unnecessarily increase the cost and burden of discovery, and any stores excluded by this “snapshot” approach were either not included in the class period for the entire time, and/or on the geographic “fringes” of the geographic definitions of the class. Id. at 4-6. Wal-Mart further argued that Plaintiffs could seek additional discovery after class certification, if they were able to certify a class using the “snapshot” data. Id.
Plaintiffs disagreed, arguing that the date Wal-Mart selected was at the close of the class period, and ignored the many stores and districts that had been in the regions since the opening of the class membership period, omitting 37% of the total 415 stores at issue during the period. Plaintiffs further argued that Wal-Mart’s proposed date would limit (and truncate) statistical analysis, excluding many stores that were subject to regional control during the relevant period. Id. at 3-4. Plaintiffs further agreed to limit discovery to stores that had been in the California Regions for two years or more. Id.
In her order, Magistrate Judge Corley agreed with plaintiffs, finding that Wal-Mart’s date limitation “excludes potentially relevant evidence and could skew the statistical evidence sought.” Dukes v. Wal-Mart Stores, Inc., No. 3:01-CV-02252, Dkt. 837 (N.D. Cal. Jan. 10, 2013). Accordingly, the Court ruled that plaintiffs are entitled to discovery for all stores which were within the three Regions for at least two years during the class period. Id. at *2.
Both parties also expressed concern about the scope of pre-certification discovery. The Court previously limited discovery to certification-related issues, subject to appropriate limits, and Wal-Mart complied by providing responses to plaintiffs’ discovery within that limit. However, following the U.S. Supreme Court’s seminal ruling in June of 2011, Plaintiffs argued that additional discovery dating back to 1998 was necessary to meet the class certification requirements. Wal-Mart countered, arguing that it already agreed to supplement certain discovery, and that plaintiffs had not sought modification of the court’s prior order limiting discovery.
The Court found that there was not a specific dispute before the Court regarding pre-certification discovery, but that plaintiffs were entitled to pre-certification discovery subject to the proportionality of Rule 26 of the Federal Rules of Civil Procedure, and a finding by Judge Charles Breyer (presiding over the case) that the plaintiffs should not be denied the opportunity to marshal and present evidence in support of their class allegations in accordance with the U.S. Supreme Court decision clarifying Rule 23. Id. at *2.
The parties were ordered by Magistrate Judge Corley to meet and confer to develop an appropriate discovery plan.
We will continue to watch these issues develop, not only because of the high-profile nature of the case, but also as rulings in the case continue to raise issues employers face every day in litigation of complex discrimination actions. These issues include the way an employer can reasonably limit pre-certification production of information, including information that is not wholly relevant to class certification issues and/or overly burdensome, like production of information related to 418 Wal-Mart stores during a lengthy period of time.
With or without further discovery briefing, the plaintiffs in Dukes were originally ordered to file a class certification motion on or before January 11, 2013, but the date was continued to April 11, 2013. We will keep our readers updated with further developments as they break from the Northern District of California.