A Word to the Wise

Rule 401

Rule 401 of the Federal Rules of Evidence provides an essential starting point. To be relevant, evidence must have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” This rather broad definition is qualified by a number of other rules requiring that the evidence be reliable (eg, based on personal knowledge, authentic documents, non-hearsay, etc.). Even when relevant and reliable, a court may, under Rule 403, exclude relevant testimony where its probative value is substantially outweighed by considerations of delay, waste, or repetitiveness or where there is danger of unfair prejudice, confusion, or misleading of the jury.

What Is Relevant?

Indicia of relevance include proximity in time, location, and circumstances between the issues in the litigation and the collateral issues. Let's take the co-worker's discrimination claim as an example. Is the co-worker in the same department? The same office? Does she report to the same supervisor or manager? Does she perform the same job under similar conditions? When did the two alleged discriminatory events occur? Were they in close proximity? Did the same person or persons commit the alleged discriminatory acts against the plaintiff and co-worker? Are the two alleged discriminatory acts similar? For example, are both alleging pay discrimination? If not, how do the two separate issues interrelate, if at all? These and many other issues must be addressed before collateral discrimination claims will be admitted into evidence or, if admitted, have a positive impact on your case.

Missing the Evidentiary Boat

Too often, counsel forgets to lay a proper foundation for such collateral evidence, and is nonetheless shocked when the judge or arbitrator rejects its admission.

The evidence must be offered in context. If it is a pattern and practice case, then the co-worker's testimony should be offered in support of the alleged pattern and practice of discrimination, not necessarily as a separate act of discrimination. A fact-finder would be more interested in testimony supporting a pay discrimination claim if the co-worker, in a comparable position, was offered as a witness to provide evidence relating to the decision-making process, or as a further comparator, or to rebut key parts of the employer's factual defense. To preface the proffer of this information as being evidence of a further case of discrimination is to miss the point, and perhaps the evidentiary boat. The judge or arbitrator is looking for probative evidence, not ultimate conclusions in collateral cases. As one judge recently put it, “This is not to say that evidence of discrimination against others can never be relevant to an individual's discrimination claim, but at some point there must be some logical connection drawn between that other discrimination and the alleged discrimination against the plaintiff.” Murphy v. Board of Education, 2003 WL 21728840 at *5 (W.D.N.Y. 2003) (Larimer, D.J.).

Similar mistakes are often made with respect to the use of office demographics and quasi-statistical evidence in disparate treatment cases. Too often, counsel mistakes potentially relevant evidence relating to office demographics with statistically significant data. Statistics have a very defined and limited place in disparate treatment cases. Small pools are almost uniformly rejected. See McCarthy v. New York City Tech. College of City Univ. of New York, 202 F.3d 161, 165 (2d Cir. 2000); Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 121 (2d Cir. 1997)

That is not to say that statistical evidence has no place in individual discrimination cases. The better approach, however, is not to offer the statistics or relevant demographics to prove discrimination, but rather as a way to support the probative value of the components of the discrimination claim made in the litigation. Failure to do so may render the evidence inadmissible or of no value. For example, in the Murphy case, a white teacher sought to prove his claim of reverse discrimination by demonstrating that nine of the last 15 teachers hired were minorities. The court, however, gave no weight to this evidence, noting that with “no knowledge of the circumstances relating to the hiring or placement of those 15 persons, however (such as who else applied for their positions), this 'evidence' is probative of nothing whatsoever.” Murphy at *5. Plaintiff may have been better served by focusing not on the number of new hires, but on their connection to his or her claim. Were they hired into the same department? Were they hired by those who made the alleged discriminatory decisions? And so forth.

Conclusion

In short, evidence of collateral discrimination claims – if offered properly – has a place in disparate treatment claims. But a proper foundation must be laid and the fears of the fact-finder of allowing such evidence to lead the proceeding astray must be assuaged. The keys to using evidence of collateral discrimination effectively are:

• to establish a road map for the judge or arbitrator prior to tendering the evidence;
• to refrain from exaggerating the value of the proof;
• to make no attempt to litigate another case in the guise of collateral evidence; and
• to focus the fact-finder's attention on how this otherwise collateral evidence is probative of important building blocks to your case.

Finally, go back to the Rules of Evidence and remind yourself (and, if necessary, the fact-finder) of the breadth of Rule 401 and avoid the pitfalls of Rule 403 before laying your game plan.

(see below)

Electronic Discovery and Cost-Shifting: Update

By Alfred G. Feliu

In the July 2003 issue of this newsletter, I reviewed in detail Judge Scheindlin's decision in Zubulake v. UBS Warburg, 2003 WL 21087136 (S.D.N.Y. 5/13/03) relating to the question of who bears the cost of electronic discovery. Judge Scheindlin had announced a seven-part test to be employed in analyzing cost-shifting requests, and ordered that defendant restore and produce e-mails from a sampling of backup tapes at issue. This was done, and Judge Scheindlin has now issued a follow up decision in which she breaks even further new ground. Zubulake v. UBS Warburg 216 F.R.D. 280 (S.D.N.Y. 7/24/03)(Zubulake II)

In Zubulake II, Judge Scheindlin, based on the sampling provided by defendant, decided that a 75%-25% split in costs was warranted with plaintiffs bearing 25% of the costs of restoring and producing the requested tapes. In doing so, Judge Scheindlin emphasized that but for the document request, defendant would not have incurred the expense of production and that Zubulake had more to gain from the production than did defendant (although of course documents favorable to its case almost undoubtedly would be recovered). The court also noted that in a substantial litigation such as this “it is not unheard of for plaintiff's firms to front huge expenses when multi-million dollar recoveries are in sight.”

In plaintiffs' favor, the court found important that the sampling produced documents relevant to the case that would not otherwise have been uncovered but also noted that no direct evidence of discrimination was uncovered. The court reached the “unavoidable conclusion” that a significant number of relevant e-mails existed on the back up tapes. The court also found this type of evidence to be particularly powerful because “an e-mail contains the precise words used by the author.” The court also was persuaded by the narrow nature of plaintiffs' document request.

The court concluded that the proper balance in this case required that defendant bear most of the cost, but plaintiff was not to bear such an amount as to “chill the rights” of the litigants. Hence, the 75%-25% split.

Judge Scheindlin also made significant observations along the way. For example, she reasoned that cost-shifting in this context should only be considered when inaccessible data or documents are sought. She added, “When a discovery request seeks accessible data – for example, active on-line or near-line data – it is typically inappropriate to consider cost-shifting.” The court also made it clear that the responding party should always bear “the cost of reviewing and producing electronic data once it has been converted to an accessible form.” Finally, the court cautioned that “in an ordinary case, a responding party should not be required to pay for the restoration of inaccessible data if the cost of that restoration is significantly disproportionate to the value of the case.”

Throw In the Kitchen Sink, You Say?

By Alfred G. Feliu

There is a tendency for some plaintiffs' counsel to want to cover all bases by raising every conceivable claim in their complaint. Perhaps the logic is that the employer will be intimidated by the breadth of the complaint, choose to settle because of the cost of defending against the “kitchen sink complaint,” or even settle because it feels vulnerable in one of the many areas raised. Whatever the reason, the following may provoke second thoughts.

In a long and hard-fought discrimination case brought by a teacher, plaintiff alleged, “in sweeping and conclusory fashion.” discrimination based “on plaintiff's membership in virtually every class protected by law: his sex, race, national origin, age, and alleged disability.” Murphy v. Board of Education, 2003 WL 21728840 (W.D.N.Y. 2003). The court, in granting summary judgment, noted that these claims received scant attention in plaintiff's opposition papers, which the court found “indicative of the scattershot approach taken by plaintiff.” The court went on to comment: “No instance of perceived ill treatment is too trivial to be listed among the alleged violations of plaintiff's rights, and every one of those instances is ascribed to discrimination” on all of the broad grounds raised.

The court, of course, did not discount the possibility that all the allegations were true. Indeed, it recognized that “it is possible that plaintiff has been unfortunate enough to be employed in a school district where virtually everyone in a position of authority, including [plaintiff's] own union leaders, is extraordinarily prejudiced against white people, men, older persons, and the disabled, not to mention persons of certain national origins. It is even possible that defendants harbor such prejudices notwithstanding the fact that many of them fall into these very categories.” The court concluded, however, that to defeat summary judgment plaintiff must present actual evidence of such discrimination and failed to do so in this case.

The obvious lesson learned here is that kitchen sink performs better attached to the plumbing than to your complaint.

Plaintiff seeks to admit testimony relating to a similar claim of sex discrimination raised by a co-worker. She also notes that in a department of 20, there are only five women. Is the co-worker's testimony admissible? Is testimony relating to the office's demographics probative?

These questions highlight the difficulty in deciding the question of relevance in discrimination cases. No formula or litmus test can be applied in determining the relevance of any testimony, and rulings on admissibility vary. Certainly, the fact-specific nature of such inquiries plays a role in the disparity of result. But is there more at work?

A non-scientific survey of recent cases supports the view that there is. Further, as the plaintiff's bar can readily attest, their clients more often than not seem to lose the relevance battle. Inferences are often taken in favor of employers where the office demographics do not support plaintiff's claim, see Baptiste v. LaQuila-Pinnacle, 2003 WL 21756094 at *4 (S.D.N.Y. 2003) (Hellerstein, D.J.) (“But the large number of black workers on defendant's projects … weighs heavily against any inference of discrimination.”), but tend not to be given in support of plaintiff's case where they may otherwise appear warranted. See Molnar v. Pratt & Whitney, 2002 WL 32083121 (2d. Cir. 2002) (no inference of age discrimination from fact that most recent hires were considerably younger than plaintiff). The answer, it seems, lies in a witches' brew of evidentiary rules, bad lawyering, common sense, the fact-finders' preconceived notions, and – yes – in the facts of the particular case.

Rule 401

Rule 401 of the Federal Rules of Evidence provides an essential starting point. To be relevant, evidence must have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” This rather broad definition is qualified by a number of other rules requiring that the evidence be reliable (eg, based on personal knowledge, authentic documents, non-hearsay, etc.). Even when relevant and reliable, a court may, under Rule 403, exclude relevant testimony where its probative value is substantially outweighed by considerations of delay, waste, or repetitiveness or where there is danger of unfair prejudice, confusion, or misleading of the jury.

What Is Relevant?

Indicia of relevance include proximity in time, location, and circumstances between the issues in the litigation and the collateral issues. Let's take the co-worker's discrimination claim as an example. Is the co-worker in the same department? The same office? Does she report to the same supervisor or manager? Does she perform the same job under similar conditions? When did the two alleged discriminatory events occur? Were they in close proximity? Did the same person or persons commit the alleged discriminatory acts against the plaintiff and co-worker? Are the two alleged discriminatory acts similar? For example, are both alleging pay discrimination? If not, how do the two separate issues interrelate, if at all? These and many other issues must be addressed before collateral discrimination claims will be admitted into evidence or, if admitted, have a positive impact on your case.

Missing the Evidentiary Boat

Too often, counsel forgets to lay a proper foundation for such collateral evidence, and is nonetheless shocked when the judge or arbitrator rejects its admission.

The evidence must be offered in context. If it is a pattern and practice case, then the co-worker's testimony should be offered in support of the alleged pattern and practice of discrimination, not necessarily as a separate act of discrimination. A fact-finder would be more interested in testimony supporting a pay discrimination claim if the co-worker, in a comparable position, was offered as a witness to provide evidence relating to the decision-making process, or as a further comparator, or to rebut key parts of the employer's factual defense. To preface the proffer of this information as being evidence of a further case of discrimination is to miss the point, and perhaps the evidentiary boat. The judge or arbitrator is looking for probative evidence, not ultimate conclusions in collateral cases. As one judge recently put it, “This is not to say that evidence of discrimination against others can never be relevant to an individual's discrimination claim, but at some point there must be some logical connection drawn between that other discrimination and the alleged discrimination against the plaintiff.” Murphy v. Board of Education, 2003 WL 21728840 at *5 (W.D.N.Y. 2003) (Larimer, D.J.).

Similar mistakes are often made with respect to the use of office demographics and quasi-statistical evidence in disparate treatment cases. Too often, counsel mistakes potentially relevant evidence relating to office demographics with statistically significant data. Statistics have a very defined and limited place in disparate treatment cases. Small pools are almost uniformly rejected. See McCarthy v. New York City Tech. College of City Univ. of New York , 202 F.3d 161, 165 (2d Cir. 2000); Pollis v. New Sch. for Soc. Research , 132 F.3d 115, 121 (2d Cir. 1997)

That is not to say that statistical evidence has no place in individual discrimination cases. The better approach, however, is not to offer the statistics or relevant demographics to prove discrimination, but rather as a way to support the probative value of the components of the discrimination claim made in the litigation. Failure to do so may render the evidence inadmissible or of no value. For example, in the Murphy case, a white teacher sought to prove his claim of reverse discrimination by demonstrating that nine of the last 15 teachers hired were minorities. The court, however, gave no weight to this evidence, noting that with “no knowledge of the circumstances relating to the hiring or placement of those 15 persons, however (such as who else applied for their positions), this 'evidence' is probative of nothing whatsoever.” Murphy at *5. Plaintiff may have been better served by focusing not on the number of new hires, but on their connection to his or her claim. Were they hired into the same department? Were they hired by those who made the alleged discriminatory decisions? And so forth.

Conclusion

In short, evidence of collateral discrimination claims – if offered properly – has a place in disparate treatment claims. But a proper foundation must be laid and the fears of the fact-finder of allowing such evidence to lead the proceeding astray must be assuaged. The keys to using evidence of collateral discrimination effectively are:

• to establish a road map for the judge or arbitrator prior to tendering the evidence;
• to refrain from exaggerating the value of the proof;
• to make no attempt to litigate another case in the guise of collateral evidence; and
• to focus the fact-finder's attention on how this otherwise collateral evidence is probative of important building blocks to your case.

Finally, go back to the Rules of Evidence and remind yourself (and, if necessary, the fact-finder) of the breadth of Rule 401 and avoid the pitfalls of Rule 403 before laying your game plan.

(see below)

Electronic Discovery and Cost-Shifting: Update

By Alfred G. Feliu

In the July 2003 issue of this newsletter, I reviewed in detail Judge Scheindlin's decision in Zubulake v. UBS Warburg, 2003 WL 21087136 (S.D.N.Y. 5/13/03) relating to the question of who bears the cost of electronic discovery. Judge Scheindlin had announced a seven-part test to be employed in analyzing cost-shifting requests, and ordered that defendant restore and produce e-mails from a sampling of backup tapes at issue. This was done, and Judge Scheindlin has now issued a follow up decision in which she breaks even further new ground. Zubulake v. UBS Warburg 216 F.R.D. 280 (S.D.N.Y. 7/24/03)( Zubulake II )

In Zubulake II, Judge Scheindlin, based on the sampling provided by defendant, decided that a 75%-25% split in costs was warranted with plaintiffs bearing 25% of the costs of restoring and producing the requested tapes. In doing so, Judge Scheindlin emphasized that but for the document request, defendant would not have incurred the expense of production and that Zubulake had more to gain from the production than did defendant (although of course documents favorable to its case almost undoubtedly would be recovered). The court also noted that in a substantial litigation such as this “it is not unheard of for plaintiff's firms to front huge expenses when multi-million dollar recoveries are in sight.”

In plaintiffs' favor, the court found important that the sampling produced documents relevant to the case that would not otherwise have been uncovered but also noted that no direct evidence of discrimination was uncovered. The court reached the “unavoidable conclusion” that a significant number of relevant e-mails existed on the back up tapes. The court also found this type of evidence to be particularly powerful because “an e-mail contains the precise words used by the author.” The court also was persuaded by the narrow nature of plaintiffs' document request.

The court concluded that the proper balance in this case required that defendant bear most of the cost, but plaintiff was not to bear such an amount as to “chill the rights” of the litigants. Hence, the 75%-25% split.

Judge Scheindlin also made significant observations along the way. For example, she reasoned that cost-shifting in this context should only be considered when inaccessible data or documents are sought. She added, “When a discovery request seeks accessible data – for example, active on-line or near-line data – it is typically inappropriate to consider cost-shifting.” The court also made it clear that the responding party should always bear “the cost of reviewing and producing electronic data once it has been converted to an accessible form.” Finally, the court cautioned that “in an ordinary case, a responding party should not be required to pay for the restoration of inaccessible data if the cost of that restoration is significantly disproportionate to the value of the case.”

Throw In the Kitchen Sink, You Say?

By Alfred G. Feliu

There is a tendency for some plaintiffs' counsel to want to cover all bases by raising every conceivable claim in their complaint. Perhaps the logic is that the employer will be intimidated by the breadth of the complaint, choose to settle because of the cost of defending against the “kitchen sink complaint,” or even settle because it feels vulnerable in one of the many areas raised. Whatever the reason, the following may provoke second thoughts.

In a long and hard-fought discrimination case brought by a teacher, plaintiff alleged, “in sweeping and conclusory fashion.” discrimination based “on plaintiff's membership in virtually every class protected by law: his sex, race, national origin, age, and alleged disability.” Murphy v. Board of Education, 2003 WL 21728840 (W.D.N.Y. 2003). The court, in granting summary judgment, noted that these claims received scant attention in plaintiff's opposition papers, which the court found “indicative of the scattershot approach taken by plaintiff.” The court went on to comment: “No instance of perceived ill treatment is too trivial to be listed among the alleged violations of plaintiff's rights, and every one of those instances is ascribed to discrimination” on all of the broad grounds raised.

The court, of course, did not discount the possibility that all the allegations were true. Indeed, it recognized that “it is possible that plaintiff has been unfortunate enough to be employed in a school district where virtually everyone in a position of authority, including [plaintiff's] own union leaders, is extraordinarily prejudiced against white people, men, older persons, and the disabled, not to mention persons of certain national origins. It is even possible that defendants harbor such prejudices notwithstanding the fact that many of them fall into these very categories.” The court concluded, however, that to defeat summary judgment plaintiff must present actual evidence of such discrimination and failed to do so in this case.

The obvious lesson learned here is that kitchen sink performs better attached to the plumbing than to your complaint.