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Evidence Avalanche

When Ellen Mendelsohn decided to file an age discrimination lawsuit in 2002 against her
former employer, Sprint/United Management Co., she quickly learned that she wasn't the only employee who had a beef with the company. In support of her lawsuit, five other employees came forward with testimony that they too had been subject to age discrimination or that they had heard Sprint managers make disparaging remarks about older workers.

There was one major hole in Mendelsohn's alleged evidence of discrimination--none of those
employees worked for the same managers who were involved in the decision to terminate Mendelsohn during a downsizing. On Sprint's motion, the trial judge excluded this testimony as irrelevant and unfairly prejudicial to Sprint.

The trial went forward without the "me too" witnesses, and Mendelsohn lost her case. But she won big when she appealed to the 10th Circuit, which found that the district court's exclusion of the testimony was an abuse of discretion that entitled Mendelsohn to a new trial. The decision was a radical departure from established jurisprudence in most federal courts, which considered "me too" evidence inadmissible.

To the relief of employers nationwide, the Supreme Court agreed to review the 10th Circuit's decision. However, employers didn't get the exact result they wanted. In Sprint v. Mendelsohn, the unanimous court ruled that trial judges have discretion to decide whether to admit "me too" evidence. The ruling is bound to make employment cases more complex, more costly and less predictable.

"It's a very disappointing analysis," says Patrick Hulla, a shareholder in Ogletree Deakins, and a former in-house counsel at Sprint. "The only constraint on what evidence will come in is the plaintiffs' lawyers' creativity." Hulla was involved in Sprint's preparation for Mendelsohn.


Parade of Witnesses
Even the Supreme Court expressed concern over allowing "me too" testimony into evidence. "We'll have trials that last a thousand years," Justice Breyer said during oral arguments.

Most employment litigators are predicting the immediate impact of the ruling will be longer employment trials. Mendelsohn requires trial courts to admit "me too" evidence if it is relevant to the plaintiff's specific circumstances and theory of the case. For instance, in a case where the plaintiff alleges companywide hostility toward female managers, testimony from female employees outside the plaintiff's direct line of reporting might be allowed.

Plaintiffs' attorneys will likely tailor their legal theories to favor this evidence being admitted. Defendants thus will find themselves not only defending the action they took against the plaintiff, but also trying to disprove the allegations of nonparties. "It's difficult for an employer to rebut this testimony without addressing the merits of the other employees' complaints," points out Richard Reibstein, a partner at WolfBlock.

On the other side of the coin, Mendelsohn also allows defendants to argue for the admission of "me too" testimony that tends to disprove the plaintiff's theory of the case. This is what Paul Cane, a Paul Hastings partner who argued the case for Sprint before the High Court, calls "not you either" evidence. Testimony from employees or managers willing to say the company does not discriminate on the alleged basis will be subject to the same discretionary relevance analysis by trial judges.

Finally, it's essential to note the decision does not eviscerate the arguments defendants have traditionally used to keep out "me too" testimony.

"Defendants will continue to hit hard the argument under FRE 403 that this testimony is more prejudicial than probative and confuses the question of whether this plaintiff suffered discrimination with the question of whether this defendant is a 'bad company,'" Cane says. "It's the same issue we've been arguing about for decades."


Go Fish
Another arena in which Mendelsohn will play out is pretrial discovery. The decision gives plaintiffs ammunition to argue that information about other employees throughout the company is potentially relevant and therefore discoverable.

Because the Supreme Court stressed that trial courts should analyze the relevance of "me too" testimony on a case-by-case basis, trial judges will likely reserve judgment on the admissibility of such evidence until trial and err on the side of allowing plaintiffs to expand their discovery requests.

Therefore, many defendants will get stuck reviewing and producing massive amounts of data about their workforces, arguing about which employees should be made available for depositions and engaging in costly courtroom battles over motions to compel.

"Plaintiffs will cite the decision to contend that they're entitled to go on fishing expeditions for information about other employees who might support their allegations," Cane says. "It shifts the analysis courts engage in when they balance the relevance of the discovery with the burden it places on the employer."

The decision also requires defendants to do a lot more discovery about potential "me too" witnesses--both adverse and potentially helpful--to prepare for trial.

"The problem is that neither side's counsel knows until just before trial whether these witnesses will be allowed to testify, so you have to run on the assumption that they will," Reibstein says. "That will amount to a considerable increase in the cost of litigation--but there's really no other effective way to prepare."


Discretionary Authority
One potential way employers can blunt the impact of Sprint is to decentralize managerial authority and empower low-level supervisors to exercise discretion in making employment decisions.

If a company can show that a single supervisor made the allegedly discriminatory employment decision the plaintiff is challenging without input from upper managers, it will be difficult for the plaintiff to argue that complaints from employees who reported to different managers have any bearing on his case. The inquiry will thus be limited to whether that specific supervisor engaged in intentional discrimination.

"The scope of discovery and evidence will be as broad as the manager's discretion," Hulla says. "Employers should give the lowest level of review possible to employment decisions."

Adele Nicholas

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