A federal judge in Virginia held last month that a plaintiff in an age discrimination case was entitled to discovery of her former employer's emails, personnel files, performance reviews, and RIF-related documents. The 60-year-old plaintiff in Marlow v. Chesterfield Cnty. Sch. Bd., a former employee of a Virginia county school board, brought a suit under the Age Discrimination in Employment Act (ADEA) alleging that the board had demoted and terminated her, reduced her pay, altered the terms of her employment, and caused her to retire early on account of her age. When the school board refused to produce all of the documents and information sought by plaintiff's broad discovery requests, she brought a motion to compel. The judge granted the motion in part, reasoning that many of the requested documents—including personal emails to or from friends and family—could lead to evidence regarding the employer's disparate treatment of plaintiff or other employees on the basis of age, or alternatively could constitute "background evidence of the employer's attitudes, biases, or prejudices," which would be relevant to proving discriminatory impact.

This ruling suggests that in cases alleging disparate impact discrimination, plaintiffs may be entitled to examine a broad range of information to establish "background evidence" of an employer's discriminatory purposes.