Defending The Digital Workplace

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Employers Will Need More than a White Belt to Survive “Me Too Evidence” Avalanche

Saulo Ribeiro is a six time Brazilian Jiu-Jitsu World Champion and a two-time Abu Dhabi Combat Club Submission Wrestling World Champion. What this means for you and me is that Saulo could tie us up into human balloon-like sculptures in his sleep. He shares this knowledge in his newly published a book, Jiu-Jitsu University, Victory Belt Publishing (2008). Regardless of your skill level, it is an excellent resource for jiu jitsu practitioners. It also provides Business Leaders with principles for minimizing risks and costs associated with discrimination claims under a 2008 decision by the Supreme Court.

Specifically, Saulo talks in his book about the importance of belt rankings as a frame of reference for the skills that should be learned so that a solid foundation for technical growth is possible. According to Saulo, for the white belt, i.e., the beginner, the first goal is to “survive.” In Jiu Jitsu, this means being comfortable under duress while avoiding submission. Speaking from the survival experience of having a 230 lb + partner sitting on top of my lungs trying to submit me (refer back to the balloon sculpture and imagine someone trying to make your arm into a giraffe), one either (1) Redefines “comfort” as a state any masochist would appreciate; or (2) You quickly learn that the cornerstone of survival is learning to assume a position that impedes your opponent’s offense and puts you in a position to avoid being submitted.

Under a 2008 United States Supreme Court Opinion, Sprint/United Management Co. v. Mendelsohn, business organizations would do well to adopt a beginner’s jiu jitsu defensive mindset when it comes to employment litigation. Otherwise, they may end up in litigation with no opportunity to tap out (a tap out in mixed martial arts competition signals that you concede to your opponent) to avoid the weight of significantly increased litigation costs .

In Mendelsohn, the plaintiff, Ellen Mendelsohn, filed an age discrimination lawsuit following a downsizing. During litigation, she discovered that five other employees had heard other Sprint managers make disparaging remarks about older workers or had been subject to age discrimination claims. These managers, however, were not involved in the actual decision to terminate Mendelsohn nor were they within her chain of command. Thus, Mendelsohn could not connect the evidential dots between the other employees’ unfiled complaints of discrimination and Mendelsohn’s discrimination claim. Accordingly, the trial court excluded this “me too evidence” as it was not relevant to Mendelsohn’s claims, i.e., it did not tend to prove Mendelsohn was discriminated against. On appeal this decision was reversed and it then was picked up by the Supreme Court to be decided.

The Supreme Court, in a unanimous decision, ruled that trial judges have the discretion to decide whether to admit “me too evidence” if it is relevant to the plaintiff’s circumstances and theory of the case (for a great summary of the Opinion See Court Decides “me-too” Case): “Whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” The Court then sent the case back to the trial court for the fact intensive analysis required under the Court’s opinion.

What the Supreme Court’s decision means for Business Leaders is that their companies may prefer hitting the mat with a 230 lb man even if it means trying to find comfort while being put into an arm bar (unlike litigation, you can tap out). This is because under Mendelsohn there are two costly issues that are likely to arise in discrimination claims that Business Leaders will have to address.

The first issue is that business organizations are likely to find that not only are they defending the action taken against a plaintiff, but also disproving the allegations of non-parties. This simply cannot be done without addressing the merits of these non-party complaints. And this cannot be done without expending additional time and resources in litigation to investigate such complaints. Ironically, one of the Justices (Breyer) recognized this concern, “We’ll have trials that last thousands of years.” (p. 46 of the Transcript). Further, Business Leaders need to be careful in investigating these non-party complainants to avoid spawning further litigation in the forms of discrimination and retaliation claims. According to the Equal Employment Opportunity Commission, retaliation claims reached a record 26,663 in 2007, which is an increase of 18 %  from the previous year and double claims since 1992. This increase is expected to continue.

Employers are likely to be in the position of searching through a digital haystack for the proverbial needle.

Employers are likely to be in the position of searching through a digital haystack for the proverbial needle.

The second – and potentially more costly – issue is that plaintiffs’ attorneys will leverage the expanded scope of discovery to include other employees and managers throughout the company. The significance of this is that employers and their attorneys will likely have to extend preservation efforts outside of the expected zone of key decision-makers and review what may easily become a massive amount of documents disbursed throughout the company in search of information about other instances of discrimination. And unless your business organization is the only organization in the developed world sitting on the side-lines waiting to see if e-mail is just a fad, the information plaintiffs’ attorneys will be demanding access to will likely be contained in e-mails and back up tapes, which pose unique challenges to the uninitiated (See Best Buy Stores, LP v Developers Diversified Realty Corp, (D. Minn. Feb. 1, 2007), the Court rejected Developers argument that it did not have the resources or time to retrieve, review and produce information from 345 back-up tapes at an estimated cost of nearly $500,000, which did not include attorney fees).

Returning to Saulo’s objective for the White Belt, Business Leaders will need to put their organization in a position to survive what could easily become an expensive digital fishing trip.

In this regard, the first point in surviving is to look at what the trial court did after the Supreme Court remanded it. Specifically, the trial judge held that plaintiff’s “me-too evidence” was not admissible because Plaintiff did not contend that evidence offered by other employees concerned managers in the same chain of command as Plaintiff or her manager and those other managers did not participate in the decision to terminate plaintiff’s employment. Thus, the Court found that the plaintiff’s proposed evidence of discriminatory remarks was not “relevant or had only the tiniest degree of relevance.” The take away for an employer is to be able to show that the supervisor alleged to have made the discriminatory employment decision did so without input from upper or lateral managers. If this is shown, it will be difficult for an employee to convince the court that complaints from other employees about different managers have any relevance to plaintiff’s claims.

The problem employers are likely to face, however, is that the Supreme Court emphasized the discretion trial courts have to analyze the relevance of “me too evidence.” Discretion is certainly a gray area and what will likely happen is that trial courts will reserve judgment on admissibility of such evidence until trial. So employers will be in a position of having to first preserve a digital haystack and then searching for a possible needle, i.e., an e-mail containing a remark that could be construed as discriminatory, long before the claim gets to trial. This concern leads to the second point to address.

The second point to address is  purging information that no longer has a business purpose. This purging should, ideally, be done pursuant to a records management policy and in the absence of litigation (See Document Management: An Ounce of Prevention for further information and a link to a White Paper on this subject). A records management policy is an inexpensive and effective way to eliminate the size of the digital haystack employers may be required to search through under the Mendelsohn decision.

The third point is based on past experience. Business Leaders must make sure their legal team — outside and inside counsel —  have more than just the equivalent of a “white belt” when it comes to the rules concerning e-mails, databases, digital information, back up tapes, etc., which is commonly referred to as “electronic discovery” or “e-discovery.”  Many attorneys may have “black belt” employment law credentials (a number of these attorneys will even be the first to tell you this). But this experience often is not matched by an understanding of the technological landscape and the rules applicable to that landscape. See Lawyers Behaving Badly: Understanding Unprofessional Conduct in e-Discovery for an excellent analysis of the legal profession’s failure to keep pace with technology. The end result is that you may as well be grappling with Saulo with one hand tied behind your back. Let me know how that works out. This is because a company’s defense will be undermined by failing to leverage the opportunities and avoiding the risks under the rules governing e-discovery.

And there is no shortage of case law illustrating this danger: Treppel v. Biovail Corp. (S.D.N.Y) (The court granted a motion for sanctions, finding that the defendants had failed to take adequate measures to preserve e-mails and related digital documents and faulted Biovail’s general counsel for “clearly deficient” efforts to preserve such information.); Metropolitan Opera Association, Inc v Local 100, (S.D.N.Y. 2003) (The Court granted plaintiff’s motion for judgment as to liability against defendants and for additional sanctions in the form of attorneys’ fees necessitated by defendant and its counsel’s failure to meet e-discovery preservation obligations.).

And aside from sanctions, an attorney inexperienced in e-discovery matters will likely cost your organization money and resources. Examples include failing to use existing technologies to streamline the collection and review of digital information, making mistakes in producing digital information that have to be “redone” at a cost of tens of thousands of dollars, failing to take the opportunity to shift e-discovery costs to the other side, directing your IT personnel to unnecessarily expend weeks retrieving information from back up tapes, and (my favorite) sending you a letter to have your company “preserve everything” followed by pages of what “everything may include” until further notice, without any further notice or direction.

While I appreciate that litigation imposes burdens on companies, Business Leaders should be concerned if their attorneys lack the understanding and experience to minimize those burdens. Otherwise, Business Leaders and their organizations will not have the solid foundation to minimize the risks and burdens created by the Mendelsohn decision.


Written by Jason Shinn

December 7, 2008 at 11:04 pm

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