Chen-Oster v. Goldman, Sachs & Co.
Chen-Oster v. Goldman, Sachs & Co.
2020 WL 6504448 (S.D.N.Y. 2020)
November 5, 2020
Lehrburger, Robert W., United States Magistrate Judge
Summary
The court denied the Plaintiffs' request to search for and produce email from senior Goldman leaders who sat on the firmwide Management Committee due to lack of evidence of nexus regarding the particular individual or group's role in approving, revising, implementing, or ignoring disparities linked to the three processes. However, the court granted the Plaintiffs' request to depose two of the MC members to potentially uncover evidence that would support a different outcome.
Additional Decisions
H. CHRISTINA CHEN-OSTER, et al., Plaintiffs,
v.
GOLDMAN, SACHS & CO., et al., Defendants
v.
GOLDMAN, SACHS & CO., et al., Defendants
10-CV-6950 (AT) (RWL)
United States District Court, S.D. New York
Signed November 05, 2020
Counsel
Adam T. Klein, Christopher McNerney, Cara Elizabeth Greene, Carmelyn Pingol Malalis, Daniel S. Stromberg, Pro Hac Vice, Justin Mitchell Swartz, Michael Christopher Danna, Ossai Miazad, Sabine Jean, Maya Jumper, Melissa Lardo Stewart, Outten & Golden, LLP, Rachel Geman, Lieff Cabraser Heimann & Bernstein, LLP, New York, NY, Alison M. Stocking, Anne B. Shaver, Pro Hac Vice, Heather H. Wong, Pro Hac Vice, Kelly Dermody, Michael Ian Levin-Gesundheit, Michelle Lamy, Tiseme Gabriella Zegeye, Valerie D. Comenencia Ortiz, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA, Brendan Patrick Glackin, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, NY, Dana Gale Sussman, Safe Horizon Anti-Trafficking Program, Brooklyn, NY, Paul W. Mollica, Equip for Equality, Chicago, IL, for Plaintiffs H. Christina Chen-Oster, Shanna Orlich.Adam T. Klein, Cara Elizabeth Greene, Carmelyn Pingol Malalis, Justin Mitchell Swartz, Melissa Lardo Stewart, Outten & Golden, LLP, Rachel Geman, Lieff Cabraser Heimann & Bernstein, LLP, New York, NY, Alison M. Stocking, Anne B. Shaver, Pro Hac Vice, Heather H. Wong, Pro Hac Vice, Kelly Dermody, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA, Dana Gale Sussman, Safe Horizon Anti-Trafficking Program, Brooklyn, NY, Paul W. Mollica, Equip for Equality, Chicago, IL, for Plaintiff Lisa Parisi.
Christopher McNerney, Adam T. Klein, Daniel S. Stromberg, Pro Hac Vice, Michael Christopher Danna, Ossai Miazad, Sabine Jean, Maya Jumper, Outten & Golden, LLP, New York, NY, Kelly Dermody, Michael Ian Levin-Gesundheit, Michelle Lamy, Tiseme Gabriella Zegeye, Anne B. Shaver, Valerie D. Comenencia Ortiz, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA, Brendan Patrick Glackin, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, NY, for Plaintiffs Allison Gamba, Mary De Luis.
Neal D. Mollen, Paul Hastings LLP, Washingon, DC, Andrew J. Peck, DLA Piper US LLP, Hannah Michelle Lonky, Hilary M. Williams, Joshua Seth Levy, Robert Joseph Giuffra, Jr., Sharon L. Nelles, Beth Deborah Newton, Margaret Elizabeth Bartlett, Robin D. Fessel, Suhana S. Han, Theodore Otto Rogers, Jr., Ann-Elizabeth Ostrager, Michael Peter Reis, Sullivan & Cromwell LLP, Joanna Ka Wai Chan, Mark Stewart Cohen, Nathaniel P. T. Read, Cohen & Gresser, LLP, Patrick William Shea, Paul Hastings LLP, New York, NY, Amanda Flug Davidoff, Elizabeth A. Cassady, Jeffrey B. Wall, Sullivan & Cromwell LLP, Barbara B. Brown, Pro Hac Vice, Carson Hobbs Sullivan, Pro Hac Vice, Paul Hastings LLP, Washington, DC, for Defendants.
Lehrburger, Robert W., United States Magistrate Judge
ORDER
*1 This Order resolves Plaintiffs’ request to move to compel Defendants (“Goldman”) to search for and produce so-called “boys-club” documents (i.e., email) from senior Goldman leaders, all of whom at one time sat on Goldman's firmwide Management Committee (“MC”). (Dkt. 1095.)
During class-certification discovery, Goldman searched for, and produced to the extent responsive and not privileged, boys-club evidence over a period covering 2003 to 2012 from among sixty-two document custodians, including certain MC members, six of whom are among the MC members now at issue. In certifying the instant class action, however, Judge Torres did not certify a class based on boys-club evidence; rather, the class case is based on generalized evidence of alleged discriminatory impact and treatment resulting from application of three particular evaluation and promotion processes.
To support their current request, Plaintiffs invoke Lenzi v. Systemax, Inc., 944 F.3d 97 (2d Cir. 2019). In that case, which was not a class-action, the plaintiff claimed gender-based pay discrimination, retaliation, and wrongful termination. In finding that the plaintiff had established a prima facie case of discriminatory intent with respect to pay, the Second Circuit recognized as relevant the pervasive sexist comments of the plaintiff's direct supervisor (the defendant's Chief Financial Officer's). Id. at 112.
In the wake of Lenzi, this Court determined that individualized evidence of discriminatory animus toward women may be relevant here if that animus was demonstrated by senior personnel responsible for approving, revising, or implementing the allegedly discriminatory policies at issue. With a month remaining in merits discovery, Plaintiffs contend that they now have evidence showing that the MC is that group of personnel. Of seventy-four past and present members of the MC, Plaintiffs seek targeted boys-club discovery from thirteen members.
Goldman opposes the discovery based on burden, relevance, and proportionality. With respect to burden, Goldman greatly exaggerates the amount of time (17 months) and money ($24 million) the requested discovery would take. (Dkt. 1097 at 2.) Plaintiffs do not seek to rerun all search terms on prior custodians (of which Plaintiffs identify six) or run all of them anew on those who were not previously custodians (of which Plaintiffs identify seven). Rather, Plaintiffs seek to apply only boys-club specific search terms. That said, the discovery sought would still likely impinge on the current discovery schedule of this already ten-year-old case.
With respect to relevance, Goldman contends that in order for Plaintiffs to be entitled to individualized boys club evidence, Plaintiffs must first come forward with evidence that the individuals harbored discriminatory animus toward women. That is not what this Court previously held, as Plaintiffs correctly point out. To the contrary, obtaining evidence of gender animus is the objective of the discovery sought, not a prerequisite. That said, there must be evidence of nexus regarding the particular individual or group's role in approving, revising, implementing, or ignoring disparities linked to the three processes; otherwise, proof of their animus is tangential at best to the specific issues being tried in Phase I of this action.
*2 The evidence Plaintiffs have submitted does not make that showing. Some, perhaps all, MC members indisputably were involved in Goldman's diversity initiatives at a general level. And the MC was made aware of gender disparities based on information provided to it by other groups such as Human Capital Management or one of Goldman's diversity committees. Moreover, there is boys-club evidence from class-certification discovery implicating some of Goldman senior executives. But the deposition testimony and exhibits Plaintiffs put forward to justify the additional discovery they seek do not sufficiently demonstrate that the MC made decisions with respect to the three processes at issue, let alone in the context of considering their application and effect on gender disparity.
Taking into consideration all of the factors relevant to the proportionality analysis under Fed. R. Civ. P. 26(b)(1), Plaintiffs’ request is DENIED. The Court recently granted Plaintiffs’ request to depose two of the MC members at issue on the current request (Lloyd Blankfein and Gary Cohn). If evidence emerges from those depositions that would support a different outcome, Plaintiffs may bring it to the Court's attention.
SO ORDERED.