InsideCounsel » May 2008
Evidence Avalanche
Supreme Court’s Mendelsohn decision complicates employment litigation.
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.
