286 F.R.D. 1
D.D.C.2012Background
- Plaintiffs are former Ruth’s Chris female employees alleging gender discrimination under Title VII and DCHRA.
- Court bifurcated class and merits discovery in December 2011; Plaintiffs move to compel related disclosures.
- Court ordered Defendants to produce 2006–2009 W-2 data for relevant employees and a random sample for certain positions.
- Court allowed production of job history and detailed position data beyond mere 2006–2009 history to some extent.
- Court refused to broaden discovery to all servers despite one plaintiff’s server history, maintaining the server exclusion from the Order.
- Court ordered third-party data (applicant tracking and testing data) produced or cost-shared; addressed control and cost issues; test data ordered produced.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of W-2 data production | Plaintiffs: must produce raw W-2 data for all relevant years and positions | Defendants: only produce data currently in databases; burden to run reports is high | Partial grant: require 2006–2009 W-2 data for relevant employees by July 20, 2012 |
| Pre-2006 job history data | Need pre-2006 history to analyze promotions and identify comparators | Role irrelevant; discovery limited to 2006–2009 | Partially granted: produce all job history for relevant persons including pre-2006 dates |
| Discovery on servers | Need server data to analyze promotions pipeline | Server data is outside the named positions and the Order; improper scope | Denied: servers excluded by the Order; no broad server discovery |
| Third-party vendor data control | Defendants have control or feasible means to obtain third-party records | No possession but can obtain via subpoena or cost-sharing; control uncertain | Partially granted: require cost-sharing for applicant tracking data; third-party test data to be produced by Defendants |
| Date of birth as proxy for experience | DOB data allowed to proxy age for experience in regression analyses | Age proxy may be misleading and based on stereotypes | Grant: DOB discovery allowed to assess age as proxy for experience |
Key Cases Cited
- In re NTL, Inc. Sec. Litig., 244 F.R.D. 179 (S.D.N.Y. 2007) (defines control for third-party documents in discovery)
- United States ITC v. ASAT, Inc., 411 F.3d 245 (D.C. Cir. 2005) (explains control as the ability to obtain documents on demand)
- Nosal v. Granite Park LLC, 269 F.R.D. 284 (S.D.N.Y. 2010) (discusses control and compulsory process in third-party discovery)
- Reed v. Advocate Health Care, 268 F.R.D. 573 (N.D. Ill. 2009) (uses age proxy for experience in statistical analyses)
- Melani v. Board of Higher Education, 561 F. Supp. 769 (S.D.N.Y. 1983) (upholds consideration of age as a proxy for women in class actions)