The Supreme Court's decision in Dukes v. Wal-Mart Stores, Inc., 131 S. Ct. 2541 (2011), continues to find its way into briefing for the nuts and bolts of many class actions. The latest is a discovery dispute in Artis, et al. v Deere & Co., Case No. 10-CV-5289 (N.D. Cal. Aug. 8, 2011), in which the Court rendered a plaintiff-friendly ruling bearing upon the type of discovery that an employer must face in a nationwide workplace bias class action.

Plaintiff Holly Artis filed a putative class action against defendants Deere & Company and John Deere Landscapes, Inc. for alleged nationwide gender discrimination in hiring. The putative class comprised “all female job applicants and deterred applicants for entry level sales, customer service and shipping and receiving employment by Deere’s Equipment Operations divisions."

A discovery dispute arose when Plaintiff sought various categories of documents from Defendants, including job applications and other sources of names, addresses, telephone numbers, and email addresses of putative class members and percipient witnesses. Plaintiff argued that she was entitled to an order compelling Defendants to produce the contact information because it was necessary to assemble information needed to meet the elements required for class certification under Rule 23. Specifically, Plaintiff argued the discovery could lead to information that would substantiate the class allegations, including: “(1) that the class is sufficiently numerous; (2) that Defendants provide female applicants and potential applicants discriminatory, inconsistent, or inaccurate statements about the job requirements and qualifications; (3) that Plaintiff’s claim of injury resulting from Defendants’ actions is typical of the class; and (4) that Defendants engage in a pattern or practice of discriminating against female applicants.”

Defendants argued that, under Dukes, the individualized information that putative class members may possess is irrelevant to class certification. Specifically, Defendants argued that Plaintiff must identify a company-wide evaluation method that can be charged with bias or offer significant proof of a general policy of discrimination and, without that, Plaintiff is not entitled to the discovery at issue.  Defendants also argued that Plaintiff offered no evidence to suggest that her experience is anything other than the experience of one applicant who applied for one position at one branch in Northern California, and that if her experience was anything other than the experience of one individual, she should have evidence of the foundational policy upon which her claims are based. Defendants further claimed that individuals who applied for employment had a legitimate expectation of privacy in their identity and contact information.

A Magistrate Judge issued an order compelling defendants to produce the contact information of all putative class members. Defendants sought review of the Order, and Judge William Alsup upheld the ruling. The Court disregarded Defendants' arguments that the information violated third parties' rights to privacy, on the basis that the Magistrate "carefully balanced" the "compelling public need" for discovery with the "fundamental right to privacy." Id. at 3. Moreover, the Court noted, Defendants were free to request a protective order.

More importantly, the Court held that pre-certification discovery of putative class members’ contact information is proper when plaintiff either makes a prima facie showing that Rule 23 is satisfied or when plaintiff shows “that discovery is likely to produce substantiation of the class allegations.” Id. at 2. The Court found that the Magistrate Judge had found that plaintiff had established a prima facie case for class certification, by making findings as to numerosity, commonality, typicality, and adequacy representation under Rule 23(a), as follows: (1) the complaint alleged that hundreds of former female job applicants were discriminated against, making a prima facie showing of numerosity; (2) a prima facie showing of commonality was made among female applicants who allegedly were provided with “discriminatory, inconsistent, or inaccurate statements about the job requirements and qualifications;” (3) the complaint presented a prima facie showing of typicality in that plaintiff’s claim of injury -  denial of employment, wages, and benefits - was typical of the class; and (4) the interests of the putative class members were implicated by plaintiff’s allegations that defendants engage in a pattern or practice of discriminating against female job applicants. Id. Notably, in addressing Defendants' arguments based on Dukes, the Court found that this argument tended to go "to the merits of Plaintiff’s claims, which are not appropriately addressed in the context of this discovery dispute." Id.

This ruling, however, appears to ignore the key holding in Dukes, namely that plaintiffs seeking to certify a class under Rule 23 must show significant proof of a company-wide evaluation or general policy of discrimination. Dukes further recognized that inquiry into the merits is entirely permissible when making determinations under Rule 23; thus, any concern that this showing would "tend to go" toward the merits appears inconsistent with the Supreme Court's analysis. Indeed, based on Dukes, judges should consider and resolve any issues of fact that are necessary to determine whether one or more elements of Rule 23 are satisfied, regardless of whether those issues may overlap or be identical to one or more issues to be decided in ruling on the merits of the plaintiff’s claims.

For these reasons, the Court's decision in Artis overlooked key aspects of Dukes and arguably allowed overly broad discovery without requiring the plaintiff to produce "significant proof" of a company-wide policy that affected the discrimination claims. Plaintiff lawyers in class cases will certainly look to Artis as justification for broad discovery requests post-Dukes.