Employment Law Daily Divided 7th Circuit finds discovery properly restricted in fishing expedition to find comparators
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Monday, April 18, 2016

Divided 7th Circuit finds discovery properly restricted in fishing expedition to find comparators

By Ronald Miller, J.D. A district judge did not abuse his discretion by imposing restrictions on discovery in a female deputy sheriff’s lawsuit claiming sex discrimination, ruled a divided Seventh Circuit. Pointing out that any temporary limit on discovery is in some sense artificial, the appeals court found that the judge’s discovery limitations were entirely reasonable responses to the litigation conduct of the employee’s counsel and so found no abuse of discretion. Judge Posner filed a separate dissenting opinion (Kuttner v. Zabura, April 14, 2016, Sykes, D.). In October 2009, the sheriff received a complaint alleging that the female deputy, while in uniform, paid a visit to the home of a person who owed money to her boyfriend. The sheriff alleged that attempting to collect on a personal loan for a friend while in uniform violated multiple departmental regulations. She admitted to violating two rules in exchange for dropping other disciplinary charges. A Merit Commission determined that her conduct was serious enough to warrant discharge, and she was fired on February 24, 2010. Ultimately, the employee sued claiming sex discrimination, alleging that she was fired and denied a promotion because of her sex and that the sheriff’s policies regarding jail staffing discriminated against female employees. Discovery limitations. Lacking direct evidence of discrimination, the employee’s attorney sought to turn up male deputies who faced similar misconduct charges but suffered less drastic employment consequences. He sought the personnel files of more than 30 employees of the sheriff’s office. Following a hearing, the judge concluded that the discovery requests were overly broad and unduly burdensome because they lacked any time limitation and were based on “an overbroad definition of ‘similarity’ of misconduct.” The judge curtailed the scope of discoverable personnel documents to those arising after January 1, 2006, and pertaining to employees who were alleged to have engaged in similar misconduct (abuse of authority). Three months later, the employee moved for reconsideration of the discovery order. Finding that the employee’s lawyer was again overreaching, the district judge declined to revisit his earlier order. Hearsay bar. During a subsequent deposition, the judge sustained objections against questions posed by the lawyer as overbroad and restricted the inquiry to questions about the witness’s “personal knowledge of abuse of authority” committed by other deputies. After discovery closed, the judge rejected four male comparators that the employee claimed had also abused their positions but were not fired. In the end, the district court entered summary judgment for the sheriff. No abuse of discretion. On appeal, the employee asserted that the district court judge unduly restricted discovery and improperly granted summary judgment. She first argued that the judge’s temporal limitation on discovery was arbitrary. However, the majority pointed out that any temporary limit on discovery is in some sense artificial. While the January 1, 2006, date was not keyed to any specific facts in the case, the Seventh Circuit observed that its abuse-of-discretion standard of review requires a deferential and contextualized approach. To that end, the court found that the proper inquiry in this case was two-fold: (1) was some time limit warranted here, and (2) was this time limit reasonable—did it allow the employee a meaningful opportunity for discovery? The court answered “yes” to both questions. The district court’s reason for imposing the time limit was to rein in plaintiff’s counsel’s “overly broad and unduly burdensome” discovery expedition, observed the appeals court. The district judge reasonably concluded that counsel’s litigation conduct justified placing some limits on discovery so that it would focus only on capturing information reasonably calculated to lead to relevant evidence. Whether the information being sought was reasonably current was one component of relevance. Authorized window. Next, the appeals court expressed confidence that the authorized window was adequate for the employee to engage in meaningful discovery. Although the employee took issue with the district judge’s refusal to reconsider his original discovery order, the three-month delay between the original order and the motion for reconsideration threatened to impose a massive new burden on the employer with only a few weeks remaining until the discovery cutoff. Thus, the district judge’s concern regarding delay was clearly a valid consideration, particularly since the discovery deadline had been extended several times. Dissent. Judge Posner, in dissent, saw this case differently. He argued that the employee was well on her way to proving sex discrimination in violation of Title VII, but was prevented by an arbitrary discovery cutoff date imposed by the district judge. He pointed out that the female deputy was discharged for an offense that was less serious than offenses committed male deputy sheriffs that typically elicited either no punishment or a slap on the wrist. While Posner found that the discovery cut-off date was the worst mistake, he also urged that the district court erred in refusing to allow the employee’s lawyer to ask any questions intended to elicit hearsay testimony. This combination of the arbitrary cut-off date and the discovery hearsay bar was fatal to a promising case of disparate treatment based on gender, the dissent argued. By Ronald Miller, J.D. A district judge did not abuse his discretion by imposing restrictions on discovery in a female deputy sheriff’s lawsuit claiming sex discrimination, ruled a divided Seventh Circuit. Pointing out that any temporary limit on discovery is in some sense artificial, the appeals court found that the judge’s discovery limitations were entirely reasonable responses to the litigation conduct of the employee’s counsel and so found no abuse of discretion. Judge Posner filed a separate dissenting opinion (Kuttner v. Zabura, April 14, 2016, Sykes, D.). In October 2009, the sheriff received a complaint alleging that the female deputy, while in uniform, paid a visit to the home of a person who owed money to her boyfriend. The sheriff alleged that attempting to collect on a personal loan for a friend while in uniform violated multiple departmental regulations. She admitted to violating two rules in exchange for dropping other disciplinary charges. A Merit Commission determined that her conduct was serious enough to warrant discharge, and she was fired on February 24, 2010. Ultimately, the employee sued claiming sex discrimination, alleging that she was fired and denied a promotion because of her sex and that the sheriff’s policies regarding jail staffing discriminated against female employees. Discovery limitations. Lacking direct evidence of discrimination, the employee’s attorney sought to turn up male deputies who faced similar misconduct charges but suffered less drastic employment consequences. He sought the personnel files of more than 30 employees of the sheriff’s office. Following a hearing, the judge concluded that the discovery requests were overly broad and unduly burdensome because they lacked any time limitation and were based on “an overbroad definition of ‘similarity’ of misconduct.” The judge curtailed the scope of discoverable personnel documents to those arising after January 1, 2006, and pertaining to employees who were alleged to have engaged in similar misconduct (abuse of authority). Three months later, the employee moved for reconsideration of the discovery order. Finding that the employee’s lawyer was again overreaching, the district judge declined to revisit his earlier order. Hearsay bar. During a subsequent deposition, the judge sustained objections against questions posed by the lawyer as overbroad and restricted the inquiry to questions about the witness’s “personal knowledge of abuse of authority” committed by other deputies. After discovery closed, the judge rejected four male comparators that the employee claimed had also abused their positions but were not fired. In the end, the district court entered summary judgment for the sheriff. No abuse of discretion. On appeal, the employee asserted that the district court judge unduly restricted discovery and improperly granted summary judgment. She first argued that the judge’s temporal limitation on discovery was arbitrary. However, the majority pointed out that any temporary limit on discovery is in some sense artificial. While the January 1, 2006, date was not keyed to any specific facts in the case, the Seventh Circuit observed that its abuse-of-discretion standard of review requires a deferential and contextualized approach. To that end, the court found that the proper inquiry in this case was two-fold: (1) was some time limit warranted here, and (2) was this time limit reasonable—did it allow the employee a meaningful opportunity for discovery? The court answered “yes” to both questions. The district court’s reason for imposing the time limit was to rein in plaintiff’s counsel’s “overly broad and unduly burdensome” discovery expedition, observed the appeals court. The district judge reasonably concluded that counsel’s litigation conduct justified placing some limits on discovery so that it would focus only on capturing information reasonably calculated to lead to relevant evidence. Whether the information being sought was reasonably current was one component of relevance. Authorized window. Next, the appeals court expressed confidence that the authorized window was adequate for the employee to engage in meaningful discovery. Although the employee took issue with the district judge’s refusal to reconsider his original discovery order, the three-month delay between the original order and the motion for reconsideration threatened to impose a massive new burden on the employer with only a few weeks remaining until the discovery cutoff. Thus, the district judge’s concern regarding delay was clearly a valid consideration, particularly since the discovery deadline had been extended several times. Dissent. Judge Posner, in dissent, saw this case differently. He argued that the employee was well on her way to proving sex discrimination in violation of Title VII, but was prevented by an arbitrary discovery cutoff date imposed by the district judge. He pointed out that the female deputy was discharged for an offense that was less serious than offenses committed male deputy sheriffs that typically elicited either no punishment or a slap on the wrist. While Posner found that the discovery cut-off date was the worst mistake, he also urged that the district court erred in refusing to allow the employee’s lawyer to ask any questions intended to elicit hearsay testimony. This combination of the arbitrary cut-off date and the discovery hearsay bar was fatal to a promising case of disparate treatment based on gender, the dissent argued. By Ronald Miller, J.D. A district judge did not abuse his discretion by imposing restrictions on discovery in a female deputy sheriff’s lawsuit claiming sex discrimination, ruled a divided Seventh Circuit. Pointing out that any temporary limit on discovery is in some sense artificial, the appeals court found that the judge’s discovery limitations were entirely reasonable responses to the litigation conduct of the employee’s counsel and so found no abuse of discretion. Judge Posner filed a separate dissenting opinion (Kuttner v. Zabura, April 14, 2016, Sykes, D.). In October 2009, the sheriff received a complaint alleging that the female deputy, while in uniform, paid a visit to the home of a person who owed money to her boyfriend. The sheriff alleged that attempting to collect on a personal loan for a friend while in uniform violated multiple departmental regulations. She admitted to violating two rules in exchange for dropping other disciplinary charges. A Merit Commission determined that her conduct was serious enough to warrant discharge, and she was fired on February 24, 2010. Ultimately, the employee sued claiming sex discrimination, alleging that she was fired and denied a promotion because of her sex and that the sheriff’s policies regarding jail staffing discriminated against female employees. Discovery limitations. Lacking direct evidence of discrimination, the employee’s attorney sought to turn up male deputies who faced similar misconduct charges but suffered less drastic employment consequences. He sought the personnel files of more than 30 employees of the sheriff’s office. Following a hearing, the judge concluded that the discovery requests were overly broad and unduly burdensome because they lacked any time limitation and were based on “an overbroad definition of ‘similarity’ of misconduct.” The judge curtailed the scope of discoverable personnel documents to those arising after January 1, 2006, and pertaining to employees who were alleged to have engaged in similar misconduct (abuse of authority). Three months later, the employee moved for reconsideration of the discovery order. Finding that the employee’s lawyer was again overreaching, the district judge declined to revisit his earlier order. Hearsay bar. During a subsequent deposition, the judge sustained objections against questions posed by the lawyer as overbroad and restricted the inquiry to questions about the witness’s “personal knowledge of abuse of authority” committed by other deputies. After discovery closed, the judge rejected four male comparators that the employee claimed had also abused their positions but were not fired. In the end, the district court entered summary judgment for the sheriff. No abuse of discretion. On appeal, the employee asserted that the district court judge unduly restricted discovery and improperly granted summary judgment. She first argued that the judge’s temporal limitation on discovery was arbitrary. However, the majority pointed out that any temporary limit on discovery is in some sense artificial. While the January 1, 2006, date was not keyed to any specific facts in the case, the Seventh Circuit observed that its abuse-of-discretion standard of review requires a deferential and contextualized approach. To that end, the court found that the proper inquiry in this case was two-fold: (1) was some time limit warranted here, and (2) was this time limit reasonable—did it allow the employee a meaningful opportunity for discovery? The court answered “yes” to both questions. The district court’s reason for imposing the time limit was to rein in plaintiff’s counsel’s “overly broad and unduly burdensome” discovery expedition, observed the appeals court. The district judge reasonably concluded that counsel’s litigation conduct justified placing some limits on discovery so that it would focus only on capturing information reasonably calculated to lead to relevant evidence. Whether the information being sought was reasonably current was one component of relevance. Authorized window. Next, the appeals court expressed confidence that the authorized window was adequate for the employee to engage in meaningful discovery. Although the employee took issue with the district judge’s refusal to reconsider his original discovery order, the three-month delay between the original order and the motion for reconsideration threatened to impose a massive new burden on the employer with only a few weeks remaining until the discovery cutoff. Thus, the district judge’s concern regarding delay was clearly a valid consideration, particularly since the discovery deadline had been extended several times. Dissent. Judge Posner, in dissent, saw this case differently. He argued that the employee was well on her way to proving sex discrimination in violation of Title VII, but was prevented by an arbitrary discovery cutoff date imposed by the district judge. He pointed out that the female deputy was discharged for an offense that was less serious than offenses committed male deputy sheriffs that typically elicited either no punishment or a slap on the wrist. While Posner found that the discovery cut-off date was the worst mistake, he also urged that the district court erred in refusing to allow the employee’s lawyer to ask any questions intended to elicit hearsay testimony. This combination of the arbitrary cut-off date and the discovery hearsay bar was fatal to a promising case of disparate treatment based on gender, the dissent argued.

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