2 minute watch | December.20.2024
Join Erin Connell and Esther Lander as they dive into:
Erin Lander: | Erin, you do a lot of class action litigation. How are government systemic investigations different from your class action practice? |
Erin Connell: | There are several differences, but two primary ones come to mind. The first difference is that when you're in a systemic investigation with the government, it's not a two-way street. It's a one-way street. The government is asking the employer for lots of data and documents, but there's no offensive discovery that the employer can seek from the government agency. There's also no court providing any type of oversight. So if the discovery is very broad, you need to be able to negotiate it down. You can't, for example, tell the government to go file a motion to compel. You could invite subpoena litigation, but as you know, the standards are very favorable to the government, and then the investigation becomes public, which most employers want to avoid. The second thing that comes to mind is that because the stakes are so high in a systemic discrimination investigation, employers are differently motivated to prove that there is no discrimination. They want to avoid either a finding that might lead to litigation or that might lead to a public settlement. So there's an incentive to prove that no discrimination has taken place. A lot of times in systemic discrimination investigations, we're making affirmative presentations and actually trying to prove our innocence, if you will, to show that there's no discrimination. Whereas in litigation, that's less common; we're usually more comfortable relying on the fact that the plaintiff has the burden of proof and needs to prove their case. I think those are probably the two biggest differences that I see. |
Esther: | And I do the exact same thing when I have a government investigation, a systemic investigation. Affirmatively presenting the data when you produce it to the government in a way that tells your client's story, I've found to be very effective and persuasive and a good way to potentially get a positive outcome. |
Erin: | Exactly. |