Recurring Nightmares? Evidence Issues that Keep Coming Back in Employment Cases

Abstract

This paper was prepared for a presentation given at an ALI-ABA conference on Employment Law in Santa Fe, NM, July 22-24, 2010, and was published by ALI-ABA at that time. It sets forth two hypothetical fact patterns regarding allegations of sexual harassment by a co-worker and by a supervisor, including facts regarding the plaintiff’s Facebook page and uses them to illustrate the intersection of relevance, character evidence, hearsay, and authentication in the “social networking” era.

The paper first explicates the relevance rules. It then poses questions and provides case authority and flow charts regarding the admissibility of the alleged harasser’s other acts (“me, too”) as substantive evidence, and of the plaintiff’s conduct, which, if she alleges sexual assault, is subject to Federal Rule of Evidence 412. It raises questions concerning the relevance of a person’s reading habits and of the music one listens to.

Next, it analyzes and provides authority regarding the hearsay rule’s application in an employment discrimination suit. It then addresses authentication of evidence in the digital area.

The paper reports on recent decisions regarding attorney-client privilege, work product, discovery, FOIA-type requests (including those for metadata), and the obligation to preserve e-mail and other evidence. Note that after the paper’s preparation, Quon was decided at 130 S. Ct. 2619 (2010).

Keywords: Employment Law, Employment Cases, Rules of Evidence, Character Evidence, Hearsay, Propensity Rule, Sexual Harassment, Sexual Conduct, Rape Shield, Email, Internet, Out-of-Court Statements, Attorney-Client Privilege, Spoliation of Evidence

JEL Classification: K19, K29, K39, K49