In an employment discrimination case, the critical evidence generally is in the possession of the employer, especially computer-based electronically stored information (ESI).
Clearly, the employer has little incentive to produce such evidence to a defendant who is seeking legal redress.
This issue recently arose in an age discrimination case in Florida that is being prosecuted by the U.S. Employment Opportunity Commission (EEOC) against MI 5100 Corp., doing business as Jumbo Supermarket, Inc.
In a ruling this month, U.S. Magistrate Judge William Matthewman of the Southern District of Florida said he was “greatly” concerned and “troubled” that Jumbo’s legal counsel appears to have permitted two “self-interested” non-attorneys at Jumbo to collect and produce ESI sought by the EEOC.
“When combined with [EEOC’s] assertion that only 22 pages of documents have been produced by [Jumbo] in this complicated age discrimination case, the Court seriously questions the efficacy of [Jumbo’s] search, collection and document production,” he writes.
He gave Jumbo one more chance to comply with the EEOC’s discovery requests or face the prospect of a court order granting the EEOC direct access to Jumbo’s computer system so it can obtain the data itself .
Matthewmann said federal rules and case law establish “that an attorney has a duty and obligation to have knowledge of, supervise, or counsel the client’s discovery search, collection, and production.” Matthewmann said legal counsel must certify the defendant’s response to “every discovery request, response, or objection” is a complete and correct response and that “reasonable efforts” were made to locate data.
“It is clear to the Court that an attorney cannot abandon his professional and ethical duties … and permit an interested party or person to ‘self-collect’ discovery without any attorney advice, supervision, or knowledge of the process utilized,” writes Matthewmann.
The EEOC alleged last year that Jumbo Supermarket in Lake Worth, FL, discriminated against a 57-year-old woman who arrived to work her regularly scheduled shift as a Cook Manager only to discover that the store had a hired her replacement – a worker who was approximately 20 years younger.
The general manager allegedly said, “Look old lady, we have to give opportunities to new people, old lady … it is time for you to rest.”
Jumbo is a supermarket chain in the Netherlands and Belgium owned by Van Eerd Group.
Self Represented Plaintiffs?
The cases raises an unrelated concern.
Many discrimination cases today are brought by self-represented plaintiffs who cannot afford to hire legal counsel. If legal counsel are required to oversee the collection and production of evidence by the defendant, how can self-represented plaintiffs be expected to understand how to respond to defendants’ requests for evidence or the nature and scope of evidence that they are entitled to from defendants?