EVIDENCE AND DISCOVERY ISSUES IN …may be used are significantly complicated when technology is involved. This program will provide you with a practical guide to evidence and discovery

EVIDENCE AND DISCOVERY ISSUES IN EMPLOYMENT LAW

First Run Broadcast: July 27, 2017

Live Replay: June 11, 2018

1:00 p.m. E.T./12:00 p.m. C.T./11:00 a.m. M.T./10:00 a.m. P.T. (60 minutes)

Claims of discrimination, harassment, or other bad conduct in the workplace are a fraught

combination often involving ambition, strife, and emotion. This mix and the pervasive nature of

electronic messaging and social media posting work to produce complicated issues in evidence

generally and discovery specifically. What’s discoverable, from whom or what entity, and how it

may be used are significantly complicated when technology is involved. This program will provide

you with a practical guide to evidence and discovery issues in employment disputes.

• Social media evidence – how it can be discovered & when it can be used

• Discovery of electronically stored information and limitations on use

• Text messages – how to obtain them

• Evidentiary issues in discrimination and harassment claims

• Hearsay problems and how to overcome them

• “Cat’s Paw” theory evidence

• Use of motions in limine

Speaker:

Ryan Derry is the Los Angeles and Orange County offices of Paul Hastings, LLP. His practice

includes all aspects of employment litigation and counseling, including employment

discrimination, retaliation, harassment, and wage and hour claims. He represents employers in

multiple jurisdictions in state and federal courts as well as in administrative proceedings against

individual and class claims. He has been named as a California Super Lawyer Rising Star for

multiple years. Mr. Derry received his B.S., summa cum laude, from the University of

Massachusetts Amherst and his J.D. from The George Washington University Law School, with

honors, in 2006.

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Evidence & Discovery Issues in Employment Law Teleseminar

June 11, 2018 1:00PM – 2:00PM

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EVIDENCE IN EMPLOYMENT

DISPUTES

Ryan D. Derry, Esq.

Paul Hastings LLP

(213) 683-6292

[email protected]

Electronically stored information

Social media

Text messages

Specific evidentiary issues in discrimination and

harassment claims

“Me too” evidence

“Cat’s Paw” theory evidence

Personnel records of others

Other employment records

Use of Motions in limine

Overview

1

Electronically Stored Information (ESI)

2

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Federal Rule of Civil Procedure 26(b)(2)(B):

“Specific Limitations on Electronically Stored Information. A party

need not provide discovery of electronically stored information from

sources that the party identifies as not reasonably accessible

because of undue burden or cost. On motion to compel discovery

or for a protective order, the party from whom discovery is sought

must show that the information is not reasonably accessible because

of undue burden or cost. . . .”

4


Federal Rule of Civil Procedure 26(b)(2)(B) (cont’d):

“If that showing is made, the court may nonetheless order discovery

from such sources if the requesting party shows good cause,

considering the limitations of Rule 26(b)(2)(C). The court may specify

conditions for the discovery.”

5


Discovery Proportional

MicroTechnologies, LLC v. Autonomy, Inc., No. 15-CV-02220-RMW (HRL), 2016 WL 1273266 (N.D. Cal. Mar. 14, 2016)

Defendant sought deposition of third-party individual

Individual argued deposition would cause “significant oppression” or an “undue burden and expense” that is not proportional to the needs of this case

Court explained: “proportionality depends on the importance of the issues at stake in the [case], the amount in controversy, the parties' relative access to the relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense or the proposed discovery outweighs its likely benefit.” Id. at *2

Ordered deposition to proceed – need and access to information related to “serious” counterclaims outweighed expense and burden on the third party

6


Discovery Not Proportional

Black v. Buffalo Meat Serv., Inc., No. 15-CV-49S, 2016 WL 4363506

(W.D.N.Y. Aug. 16, 2016)

Employment discrimination case

Plaintiff served requests for production for broad categories of

documents and 15 interrogatories with 98 subparts (112 total

questions)

Court sided with defendants’ tailored proportionality objections

• Rejected plaintiff’s requests for broad categories of

documents as “disproportionate to the claims at issue”

• Denied requests for certain interrogatories but permitted

others

7


Robertson v. People Magazine, No. 14 CIV 6759 (PAC), 2015 WL 9077111 (S.D.N.Y. Dec. 16, 2015)

Plaintiff filed race discrimination claim and served requests for production containing 135 document requests

Defendants objected to 36, as seeking “editorial discussions,” being “burdensome” and “designed to harass”

Court agreed:

• “The Court has no trouble concluding that Plaintiff's discovery requests are burdensome and disproportionate.” Id. at *2

• Requests went well beyond scope of plaintiff’s claims:

“Unlike most discrimination cases . . ., Plaintiff here seeks nearly unlimited access to People's editorial files, including all documents covering the mental process of People staff concerning what would or would not be published in the magazine. To provide a few examples, Plaintiff requests all documents ‘concerning any of People Magazine's regular meetings,’ all documents ‘concerning any meeting at which discussions concerning which content would appear in People Magazine occurred,’ . . . copies of all of People's covers and published stories dating back to 2005.” Id.

Social Media

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9

Social Media

Searches of public information

Formal discovery: Courts generally held posted social media

discoverable

Any privilege or privacy protection was waived by sharing the

content

Relevance?

10

Social Media

Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (2010)

Plaintiff claimed injuries prevented activities

Facebook and MySpace profiles demonstrated active lifestyle, with travel

Court held private pages had information relevant and material to the claims and defenses

Court ordered plaintiff to provide an authorization to defendant to access plaintiff’s private pages

McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD, 2010 WL 4403285 (Pa. Ct. of Common Pleas Sept. 9, 2010)

Court ordered plaintiff to produce Facebook and MySpace user names and passwords

Public information showed plaintiff enjoying fishing and sporting events in contradiction to claimed injuries

11

Social Media

Reid v. Ingerman Smith LLP, No. CV 2012-0307 (ILG) (MDG), 2012 WL

6720752 (E.D.N.Y. Dec. 27, 2012)

Plaintiff sued former employer for sexual harassment and sought

damages for emotional distress

Defendant obtained private Facebook postings, by demonstrating to

court that public postings contradicted claims of mental anguish

Howell v. The Buckeye Ranch, Inc., No. 2:11-CV-1014, 2013 WL 1282518

(S.D. Ohio Mar. 27, 2013)

Court denied motion to compel production of plaintiff’s usernames

and passwords for each social media site used

Request overbroad because not limited to plaintiff’s emotional state

and whether the alleged sexual harassment had occurred

Crispin v. Christian Audigier, 717 F. Supp. 2d 965 (C.D. Cal. 2010)

Court quashed defendants’ subpoenas on third parties, including

Media Temple, Facebook, and MySpace to extent sought private

messaging

Social media sites were considered electronic communication

services (ECS) under the Stored Communications Act (SCA)

Private wall postings and comments was inherently private

electronic communications

Alternatively, Facebook and MySpace were remote computing

services (RCS providers) under the SCA

Therefore, Facebook and MySpace could not divulge contents of

communication carried or maintained on that service (for RCS

providers) nor divulge the contents of communication in electronic

storage (for ECS providers).

Social Media

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Social Media

Miles v. Raycom Media, Inc., No. 1:09CV713-LG-RHW, 2010 WL 4791764,

at *3 n.1 (S.D. Miss. Nov. 18, 2010)

Unsworn statements made on Facebook page by nonparties

Inadmissible hearsay under Fed. R. Evid. 801

Text Messages

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Right to Access?

Employer Provided Device

• Policies

• Acknowledgment

Personal Device

• Privacy interests?

• Relevance?

Text Messages

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Text Messages

Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 903-09 (9th Cir. 2008)

City contracted for pagers, distributed to employees

City had no policy regarding text-messaging via pagers

But, had a general policy re: computer, internet, and email

City requested transcripts of text messages

Reviewed texts and many of Quon’s not work-related and inappropriate

Referred to internal affairs, and Quon disciplined

Ninth Circuit held:

Arch Wireless violated SCA when it turned over text messages

City’s search of text messages violated Fourth Amendment

17

Text Messages

City of Ontario v. Quon, 560 U.S. 746 (2010)

Employee’s expectation of privacy in text messages insufficient to

overcome a government search of the pager messages that revealed

inappropriate messaging

City’s obtaining and review did not violate Fourth Amendment

prohibition of unreasonable searches and seizures

Warrantless search of employee reasonable at inception if

measures adopted reasonably related to objectives of search

Review “motivated by a legitimate work-related purpose,” and

“not excessive in scope.

Extent of an expectation of privacy relevant in determining

whether search was too intrusive

18

Text Messages

Nissen v. Pierce Cnty., 357 P.3d 45 (Wash. Aug. 27, 2015)

Plaintiff sent two requests for public records to defendant related to county prosecutor

County reviewed call and text message logs, and disclosed redacted versions to plaintiff.

Dissatisfied; plaintiff sued and sought in camera review of text messages and call and text message logs

County argued records not public records because related to a personal cell phone, rather than a county-issued one

Court held:

Text messages sent and received by a public employee in official capacity public records of the employer, even if the employee uses a private cell phone

The PRA reaches employee-owned cell phones when used for agency business as long as the agency employee is working within the scope of his employment when creating the records

Specific Evidentiary Issues

“Me too” evidence

“Cat’s Paw” theory evidence

Personnel records of others

Other employment records

19

“Me Too” Evidence

20

Plaintiff Position:

Evidence that the employer discriminated, harassed, or retaliated

against co-employees is relevant to proving the same against

employee

Defense Position:

Evidence regarding other employees is not relevant to the

requirement that the plaintiff prove what occurred in this instance;

evidence is more prejudicial than probative at trial


21


Character Evidence Is Generally Prohibited

Federal Rules of Evidence 404(a)(1):

“Prohibited Uses. Evidence of a person’s character or character trait

is not admissible to prove that on a particular occasion the person

acted in accordance with the character or trait.”

California Evidence Code § 1101(a):

“[E]vidence of a person’s character or a trait of his or her character

(whether in the form of an opinion, evidence of reputation, or

evidence of specific instances of his or her conduct) is inadmissible

when offered to prove his or her conduct on a specified occasion.”

22


Mendelsohn v. Sprint/United Mgmt. Co., 587 F. Supp. 2d 1201 (D. Kan. 2008)

Plaintiff terminated during reduction in force occurring over 18 months

Plaintiff, age 51, complained of violation of Age Discrimination in

Employment Act

At trial, sought to introduce testimony from five other former

employees

All over 40

All lost jobs in the reduction in force

All believed they, too, were victims of age discrimination

Sprint objected to the proffered testimony—arguing testimony not

relevant to Mendelsohn’s claims because

None had the same supervisor

Many were terminated long after Mendelsohn

23


Mendelsohn v. Sprint/United Mgmt. Co., 587 F. Supp. 2d 1201 (D. Kan. 2008)

(continued)

District Court agreed, excluding proffered testimony

Tenth Circuit Overturned

District court had improperly applied the “same supervisor” rule

to create a per se bar on “me-too” evidence in reduction in force

cases

Evidence itself was relevant and not unduly prejudicial and

should have been admitted at trial

24


Sprint/United Mgmt. Co. v. Mendelsohn , 552 U.S. 379 (2008)

Supreme Court unanimously reversed Tenth Circuit

No bright-line rule at trial

Discretion and deference to district courts

Not clear whether district court applying per se bar to

“me-too” evidence

Tenth Circuit should have remanded case, rather than evaluating

the evidence

District court must clarify rationale for blocking

“me-too” testimony or reconsider decision and convene a new

trial

25


Pantoja v. Anton, 198 Cal. App. 4th 87 (2011)

Plaintiff alleging sexual harassment sought to introduce evidence of

alleged harassing activity (i) outside of plaintiff’s presence; and

(ii) before plaintiff was employed

Defendant sought to exclude as improper character evidence

Trial court excluded evidence

Court of Appeal: Evidence should have been admitted and failure to

do so was prejudicial

26

“Not Me” Evidence

Evidence that other employees in a protected class did not suffer

discrimination.

Example: in a pregnancy case, the employer will show evidence

that other pregnant women were not discharged like plaintiff

Connecticut v. Teal, 457 U.S. 440, 443-44 (1982): “principal focus” of

the anti-discrimination laws is “the protection of the individual

employee, rather than the protection of the minority group as a

whole.”

Individualized assessment of the employee

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Cat’s Paw

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“Cat’s Paw”

Origin: Fable by La Fontaine called “The Monkey and the Cat”

A monkey wanted some chestnuts which were roasting in the

ashes of a fireplace

A cat was sleeping on the hearth

To avoid getting burned, the monkey used the cat’s paw to drag

the chestnuts out of the ashes

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“Cat’s Paw”

Adverse employment decision is made by someone who lacked the

requisite discriminatory/retaliatory intent, but where it is claimed

another individual or other individuals who had the required intent

influenced the ultimate decision maker

Individual with discriminatory intent is said to be moving the “cat’s

paw”

Arise where employer defends arguing decision maker was ignorant

of plaintiff’s protected status

30

“Cat’s Paw”

Staub v. Proctor Hosp., 562 U.S. 411, 417-22 (2011)

Military reservist alleged discrimination based on USERRA

Two supervisors, who were allegedly hostile to plaintiff’s military service, disciplined plaintiff

The VP, who was ignorant of plaintiff’s military status, made the decision to terminate based on the discipline

Verdict for plaintiff reversed by Seventh Circuit

Supreme Court reversed:

“[I]f a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” (emphasis in original)

31

“Cat’s Paw”

Reeves v. Safeway Stores, Inc., 121 Cal. App. 4th 95 (2004)

Male plaintiff complained of sexual harassment of female co-workers to supervisor

Supervisor trivialized complaints: “[women were] not such pure innocent things” and “the problem exists between your ears” Id. at 101

Supervisor accused plaintiff of workplace violence

Plaintiff terminated; Decision maker ignorant of complaints, but investigation prompted by supervisor

Reversing summary judgment, court of appeal relied on the cat’s paw theory:

“We hold that so long as the supervisor’s retaliatory discharge was an actuating, but-for cause of the dismissal, the employer may be liable for retaliatory discharge.” Id. at 100

32

Personnel Records of Others

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El Dorado Savings & Loan Ass’n v. Superior Court, 190 Cal. App. 3d 342

(1987)

Action by former employees for gender and age discrimination

Plaintiffs sought production of entire personnel file of non-party

employee of defendant company: only male employed in the same

capacity as plaintiffs

Defendant refused to produce personnel file, claiming violation of

right to privacy

Superior Court granted plaintiffs’ motion to compel production

34


El Dorado Savings & Loan Ass’n v. Superior Court, 190 Cal. App. 3d 342 (1987)

(continued)

Appellate court reversed

Discovery of non-party not justified:

• “First, consideration should be given to whether less intrusive means, such as deposing [non-party] and others, will yield the information sought.” Id. at 346

• “Second, even if it is determined there are no means less intrusive upon [non-party’s] privacy to satisfy plaintiffs’ legitimate need for relevant information, it is by no means established that the entire file is relevant to plaintiffs’ employment discrimination action.” Id.

Court should conduct in camera review and order disclosure of only that information relevant to lawsuit

35


Ragge v. MCA/Universal Studios, 165 F.R.D. 601 (C.D. Cal. 1995)

Plaintiff alleged sexual harassment, discrimination, and retaliation

Plaintiff sought personnel records of individual named defendants

Through meet and confer, plaintiff narrowed to documents in the

personnel files pertaining to promotions or demotions, disciplinary

proceedings, work performance reviews or evaluations, employee

and/or customer complaints, and “other records which bear on

character and/or each defendant’s credibility” Id. at 603

Defendants refused to produce personnel files: irrelevance, right to

privacy, and relevant documents previously produced in response to

other requests

36


Ragge v. MCA/Universal Studios, 165 F.R.D. 601 (C.D. Cal. 1995)

(continued)

Court compelled production:

“The importance of the information to plaintiff’s claims

outweighs any privacy interest defendants may have. Plaintiff’s

narrowing of the documents in the personnel files satisfactorily

decreases the severity of the invasion of defendants’ right to

privacy.” Id. at 605

Sensitive or information of personal nature can be protected by

protective order

37

Other Employment Records

38


Subpoenas for prior employer records quashed

Lewin v. Nackard Bottling Co., No. CV 10-8041-PCT-FJM, 2010 U.S. Dist. LEXIS 123738, at *3 (D. Ariz. Nov. 4, 2010)

Defendant sought to obtain plaintiff’s entire personnel file from five former employers

Court held:

• “[Request is] on its face, overbroad and not reasonably calculated to lead to the discovery of admissible evidence.” Citing Maxwell v. Health Center of Lack City, Inc., No. 3:05-CV-1056, -J-32MCR, at *3, 2006 U.S. Dist. LEXIS 36774, *7-8 (M.D. Fla. June 6, 2006). Id. at *2.

• “By failing to limit its subpoena to certain categories of documents, we find that defendant is merely trying to engage in a fishing expedition.” Id.

39


Discovery of prior employer records permitted Abu v. Piramco SEA-TAC, Inc., No. C08-1167RSL, 2009 U.S. Dist. LEXIS

12626 (W.D. Wash. Feb. 5, 2009)

Plaintiff claimed terminated for failure to comply with uniform requirements as hotel front desk staff

Defendant served subpoenas to two former employers and intended to send to three subsequent employers, including current employer:

1. each personnel file

2. each departmental file

3. each formal or informal supervisor’s file

4. all records relating to any reference check completed

5. all payroll records

6. all records identifying employee benefits

40


Abu v. Piramco SEA-TAC, Inc., No. C08-1167RSL, 2009 U.S. Dist. LEXIS

12626 (W.D. Wash. Feb. 5, 2009) (continued)

7. each record relating to the reason for termination

8. all records relating to complaints about plaintiff’s work

performance and investigation into such complaints

9. records reflecting complaints of discrimination made by

plaintiff to any agency

10. a job description

Plaintiff moved for a protective order

Argued defendant seeks information it already has (information

about her compensation) or information that is inadmissible in this

case (information regarding plaintiff’s performance history).

41


Abu v. Piramco SEA-TAC, Inc., No. C08-1167RSL, 2009 U.S. Dist. LEXIS

12626 (W.D. Wash. Feb. 5, 2009) (continued)

Motion granted in part, denied in part:

Requests not overly broad on their face: seek specific categories

of documents

Not produce: plaintiff payroll records not produced because

compensation obtained through less intrusive means, like tax

records

Produce: prior job performance relevant to claims of emotional

distress and credibility

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Motions In Limine

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Motions in Limine

Number of Motions in Limine

Focus of Motions in Limine


Settlement discussions

Other matters

Purpose of Motions in Limine

Exclude improper/objectionable evidence

Preserve issues for appeal

Educate Judge re: evidentiary issues

44

Documents

EVIDENCE AND DISCOVERY ISSUES IN …may be used are significantly complicated when technology is involved. This program will provide you with a practical guide to evidence and discovery