EVIDENCE AND DISCOVERY ISSUES IN EMPLOYMENT LAW

Transcription

1 EVIDENCE AND DISCOVERY ISSUES IN EMPLOYMENT LAW First Run Broadcast: July 27, 2017 Live Replay: June 11, :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.

2 VT Bar Association Continuing Legal Education Registration Form Please complete all of the requested information, print this application, and fax with credit info or mail it with payment to: Vermont Bar Association, PO Box 100, Montpelier, VT Fax: (802) PLEASE USE ONE REGISTRATION FORM PER PERSON. First Name Middle Initial Last Name Firm/Organization Address City State ZIP Code Phone # Fax # Address Evidence & Discovery Issues in Employment Law Teleseminar June 11, :00PM 2:00PM 1.0 MCLE GENERAL CREDITS VBA Members $75 Non-VBA Members $115 NO REFUNDS AFTER June 4, 2018 PAYMENT METHOD: Check enclosed (made payable to Vermont Bar Association) Amount: Credit Card (American Express, Discover, Visa or Mastercard) Credit Card # Exp. Date Cardholder:

3 Vermont Bar Association CERTIFICATE OF ATTENDANCE Please note: This form is for your records in the event you are audited Sponsor: Vermont Bar Association Date: June 11, 2018 Seminar Title: Location: Credits: Program Minutes: Evidence & Discovery Issues in Employment Law Teleseminar - LIVE 1.0 MCLE General Credit 60 General Luncheon addresses, business meetings, receptions are not to be included in the computation of credit. This form denotes full attendance. If you arrive late or leave prior to the program ending time, it is your responsibility to adjust CLE hours accordingly.

4 EVIDENCE IN EMPLOYMENT DISPUTES Ryan D. Derry, Esq. Paul Hastings LLP (213)

5 Overview 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 1

6 Electronically Stored Information (ESI) 2

7 Electronically Stored Information (ESI) 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.... 3

8 Electronically Stored Information (ESI) 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. 4

9 Electronically Stored Information (ESI) Discovery Proportional MicroTechnologies, LLC v. Autonomy, Inc., No. 15-CV RMW (HRL), 2016 WL (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 5

10 Electronically Stored Information (ESI) Discovery Not Proportional Black v. Buffalo Meat Serv., Inc., No. 15-CV-49S, 2016 WL (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 6

11 Electronically Stored Information (ESI) Robertson v. People Magazine, No. 14 CIV 6759 (PAC), 2015 WL (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 Id. 7

12 Social Media 8

13 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? 9

14 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 CD, 2010 WL (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 10

15 Social Media Reid v. Ingerman Smith LLP, No. CV (ILG) (MDG), 2012 WL (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 (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 11

16 Social Media 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). 12

17 Social Media Miles v. Raycom Media, Inc., No. 1:09CV713-LG-RHW, 2010 WL , at *3 n.1 (S.D. Miss. Nov. 18, 2010) Unsworn statements made on Facebook page by nonparties Inadmissible hearsay under Fed. R. Evid

18 Text Messages 14

19 Text Messages Right to Access? Employer Provided Device Policies Acknowledgment Personal Device Privacy interests? Relevance? 15

20 Text Messages Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, (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 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 16

21 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 17

22 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 18

23 Specific Evidentiary Issues Me too evidence Cat s Paw theory evidence Personnel records of others Other employment records 19

24 Me Too Evidence 20

25 Me Too Evidence 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

26 Me Too Evidence 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

27 Me Too Evidence 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

28 Me Too Evidence 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

29 Me Too Evidence 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

30 Me Too Evidence 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

31 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, (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 27

32 Cat s Paw 28

33 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 29

34 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

35 Cat s Paw Staub v. Proctor Hosp., 562 U.S. 411, (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

36 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

37 Personnel Records of Others 33

38 Personnel Records of Others 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

39 Personnel Records of Others 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

40 Personnel Records of Others 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

41 Personnel Records of Others 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

42 Other Employment Records 38

43 Other Employment Records Subpoenas for prior employer records quashed Lewin v. Nackard Bottling Co., No. CV PCT-FJM, 2010 U.S. Dist. LEXIS , 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

44 Other Employment Records Discovery of prior employer records permitted Abu v. Piramco SEA-TAC, Inc., No. C RSL, 2009 U.S. Dist. LEXIS (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

45 Other Employment Records Abu v. Piramco SEA-TAC, Inc., No. C RSL, 2009 U.S. Dist. LEXIS (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

46 Other Employment Records Abu v. Piramco SEA-TAC, Inc., No. C RSL, 2009 U.S. Dist. LEXIS (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 42

47 Motions In Limine 43

48 Motions in Limine Number of Motions in Limine Focus of Motions in Limine Me Too Evidence Settlement discussions Other matters Purpose of Motions in Limine Exclude improper/objectionable evidence Preserve issues for appeal Educate Judge re: evidentiary issues 44