In a letter to three federal judges, including the Honorable John G. Koeltl of the Southern District of New York, NELA/NY members Herb Eisenberg and Julian Birnbaum explain why recent proposed changes to the Federal Rules of Civil Procedure that would tend to limit discovery would for that reason be detrimental to employment discrimination plaintiffs.
In particular, it focuses on and highlights the evidentiary imbalance that usually operates to employment plaintiffs’ detriment, as well as the need for a robust discovery mechanism that permits plaintiff-employees to access critical information that is often (if not always) in the exclusive possession of employers.
This excerpt summarizes the point nicely:
The employee, who maintains the ultimate burden of persuasion, must usually seek most of the proof from the employer. Direct evidence of employment discrimination is typically difficult, if not impossible, to obtain. Courts sometimes disregard discriminatory comments,which would otherwise evidence a discriminatory mindset, when they are characterized as mere “stray remarks.” It has been uniformly acknowledged that employers do not announce their discriminatory intent, thus requiring reliance upon circumstantial evidence to prove pretext in order to survive summary judgment, prevail at trial or sustain the burden in a mixed-motive case, when appropriate. Issues in employment discrimination litigation involve intent; review of comparator qualifications, actions and treatment; simple or complex statistical information; electronic records and oral and written communications between multiple persons; and expert testimony. …
Because the important evidence is held primarily by one party, new and reduced limits will curtail discovery of basic facts needed both to prove claims and to oppose dispositive motions, thus preventing discrimination plaintiffs from having a fair opportunity to be heard.