Don’t forget about site inspections and #MeToo discovery in employment cases

If you handle employment cases, you likely are already conducting the usual written discovery, taking the obvious depositions, and subpoenaing the standard records. Less often does part of the standard discovery plan include site inspections and #MeToo discovery. The meticulous practitioner should consider both when litigating employment cases.

Site inspections for employment cases? Yes! Site inspections are authorized by Code of Civil Procedure section 2031.010, and are the only discovery procedure for gaining entrance onto an opposing party's land or property that is not open to the public. Under Section 2031.010, a party may demand to inspect, photograph, and test tangible things, land or other property, "or any designated object or operation on it." Code Civ. Proc. §2031.010(c)-(d). There are a number of scenarios in which you want a site inspection in an employment case. Some examples include:

In a harassment case:

● To show the layout of an office space to show why a harassment victim could not avoid the harasser

● To show visually-offensive items maintained or displayed at the office

● To show likelihood of managers observing the harassment due to proximity or layout

In a wage and hour case:

● To show the location of a time clock or security inspection, and how long it might take an employee to travel between them

● To show lack or inadequacy of rest/meal break area

● To show ability/failure to provide a chair/seating

● To show lack of state-mandated Labor Law posters/notices

In a whistleblower case:

● To show unsafe/unhealthful/illegal condition

In a disability discrimination case:

● To show ability to make accommodation for physical disability

● To show inadequacy of a certain accommodation for physical disability

To demand a site inspection, serve a demand for inspection compliant with Code of Civil Procedure Section 2031.010 by: (1) selecting an inspection date/time that is sufficiently beyond the 30-day response time to arrange inspection and resolve objections; (2) specifying the exact address(es) (including floors, suites, specific rooms if applicable) where the inspection will take place and any objects/items at the location that will also be inspected; and (3) specifying the activities that will occur during the inspection (e.g., specific tests, photographing, video recording). Like responding to document requests, the responding party is required to serve a response stating whether it will comply in whole or in part, or stating an inability to comply, and may lodge objections, including that the proposed inspection violates party and/or third party privacy rights. The propounding party may file a motion to compel if needed to resolve any disputes, following appropriate meet and confer efforts. Code Civ. Proc. § 2031.310. Many disagreements may be resolved by stipulation setting forth the date and time of the inspection, and the allowable parameters, including protective orders. If you are the party seeking the inspection, require the stipulation to be ordered by the Court, to receive the protections and benefits of the statutes governing violations of discovery orders.

#MeToo evidence: it's not just for sexual harassment cases!

Hearing the words "me too" immediately conjures thoughts of sexual harassment cases, because it was in that context that the phrase gained notoriety. But #MeToo evidence is not restricted to sexual harassment cases. Subject to ordinary objections, the only limitation on discovery of #MeToo evidence is that it must be "reasonably calculated to lead to the discovery of admissible evidence" in state court, or relevant and "proportional to the needs of the case" in federal court. Code Civ. Proc. §2017.010; Fed. R. Civ. P. 26(b)(1). #MeToo discovery typically consists of interrogatories seeking the identities of other complainants and litigants, documents relating to investigations into other complaints, and depositions of other complainants and involved parties. Be prepared to address a privacy objection when seeking to discover the identities of other potential #MeToo witnesses who made confidential complaints, and an "attorney-client privilege" objection if the investigation of a #MeToo complaint was conducted by retained counsel.

Despite the broad scope of discovery, expect and be prepared to defend the admissibility of #MeToo evidence that might be discovered when filing your motion to compel or opposing a motion for protective order seeking to avoid this discovery. Examples of when #MeToo evidence is admissible include:

● To show pattern or practice of discrimination against persons in the plaintiff's protected class, e.g., bias, discriminatory intent, "discriminatory atmosphere" or corporate mindset against persons in a protected category. McCoy v. Pacific Maritime Ass'n (2013) 216 Cal.App.4th 283, 295-298.

● In hostile environment harassment, evidence of conduct toward others may be admitted if the plaintiff either witnessed the conduct or had personal knowledge of it. Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 519-520.

● To show lack of efficacy of employer's anti-discrimination/anti-harassment policies. Pantoja v. Anton (2011) 198 Cal.App.4th 87, 109-110 [#MeToo evidence may be admitted to rebut defense evidence that employer had policy of not tolerating harassment].

● To show discriminatory intent, gender bias, and/or to attack/support credibility. Pantoja, supra.

● To show motive or intent to establish pretext. Johnson v. United Cerebral Palsy/Spastic Children's Foundation of Los Angeles and Ventura Counties (2009) 173 Cal.App.4th 740 [reversed granting of summary judgment in pregnancy discrimination case, finding #MeToo evidence admissible as relevant to whether stated reason for termination was pretextual].

Examples of when #MeToo evidence is not admissible include:

● "To prove an employer's propensity to harass." Pinter-Brown v. Regents of University of California (2020) 48 Cal.App.5th 55, 96.

● If discrimination is against persons outside the plaintiff's protected class. Hatai v. Department of Transp. (2013) 214 Cal.App.4th 1287, 1297-1298.

● In the court's discretion, when "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Evid. Code §352.

As a practical matter, #MeToo evidence can only be useful and possibly admissible if discovered, so incorporation of #MeToo discovery into your discovery plan is the necessary first step.

Site inspections and #MeToo discovery are not appropriate for every case, whether based on the facts, legal theories, cost versus case value, or some other reason. Nonetheless, the best practice is to simply put them on your discovery plan checklist anyway to at least consider for every case, to ensure this potentially valuable discovery is not overlooked.