The opinion of the court was delivered by: Ann Marie Donio United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Presently before the Court are two pretrial motions concerning the scope of discovery in this putative class action suit concerning alleged gender discrimination by Defendant, Lockheed Martin Corporation, and a motion concerning the timing of discovery given that the class has not yet been certified pursuant to FED. R. CIV. P. 23. Specifically, Plaintiff, Carol Bell, has filed a motion [Doc. No. 47] seeking to compel Defendant to produce company-wide discovery, including information relating to other Business Areas of Defendant and job levels higher than the positions held by Plaintiff, for a time period beyond the temporal scope of production proposed by Defendant. Defendant has filed a motion [Doc. No. 51] seeking a protective order limiting discovery and deposition questions to issues of gender and precluding Plaintiff from conducting discovery and asking deposition questions about race or age, and a motion [Doc. No. 78] to bifurcate discovery to first address class certification issues, and to address issues solely relating to the merits of this case after the class certification stage. The Court held oral argument on the motions and has considered the arguments of counsel and the submissions of the parties. For the reasons that follow, Plaintiff's motion to compel company-wide discovery is granted in part and denied in part, Defendant's motion for a protective order is denied, and Defendant's motion to bifurcate discovery is denied.
Plaintiff initiated this action on December 23, 2008 by filing a complaint asserting a claim under Title VII of the Civil Rights Act of 1964 and 1991 as amended, 42 U.S.C. §§ 2000e et seq. (hereinafter, "Title VII"), on behalf of a putative class defined as "[a]ll persons who are female and who were, are, or will be employed by Lockheed Martin Corporation in 'E' or 'L' designated positions at levels 3, 4, 5 or 6*fn1 in the United States of America from March 21, 2007, through the date of the final disposition of this Action[.]" (Proposed Second Am. Compl. [Doc. No. 42-3] ¶ 20.)*fn2 Plaintiff also asserts a claim under the New Jersey Law Against Discrimination, as amended, N.J. Stat. Ann. § 10:5-1 et seq. (hereinafter, "NJLAD"), on behalf of a proposed subclass defined as "[a]ll persons who are female and who were, are, or will be employed by Lockheed Martin Corporation in 'E' or 'L' designated positions at level 3, 4, 5 and 6 in the State of New Jersey from December 23, 2006, through the date of the final disposition of this Action[.]" (Id. at ¶ 21.) Plaintiff generally alleges in this action that Defendant "discriminates against its salaried female employees by advancing male employees more quickly than equally or more qualified female employees through middle management and into upper management level positions, and discriminates in compensation to these female employees, including with respect to pay grade, annual and promotional increases, merit pay increases and bonuses." (First Am. Compl. [Doc. No. 17] ¶ 1.) Plaintiff further alleges that the disparities between male and female employees "are the result of policies and practices that purposefully discriminate against women," including a practice whereby open director-level positions and positions considered "stepping stones" to director-level positions are not posted on Defendant's intranet, thereby purportedly precluding female employees from learning about and applying for such positions. (Id. at ¶¶ 1, 39.) Other policies and practices that allegedly discriminate against female employees include purportedly paying female employees less than similarly-situated male employees, assigning female employees lower job classifications and/or salaries within the same job classification than similarly-situated male employees, reliance on "subjective, inconsistently applied criteria in performance reviews, assignments, training, pay and promotional decisions," "reviewing and rating female employees less favorably than men," providing less training and support for female employees, and failing to promote female employees "through middle management and into upper level positions." (Id. at ¶ 51.)
Plaintiff also asserts in the First Amended Complaint individual claims for retaliation and gender discrimination. Specifically, Plaintiff avers that she has worked for Defendant for twenty-one years and is currently employed in Mt. Laurel, New Jersey within the "MS2 business unit of the Electronic Systems business area of Defendant." (Id. at ¶¶ 53, 54.)*fn3 Plaintiff avers that from June 2005 to the present, she has held an "L6" position as a Senior Manager, Subcontract Administration who reports to Douglas Goerke, Director of Sourcing. (Id. at ¶ 54.) Plaintiff contends that throughout this period, she has applied for positions "outside her business area, outside her business unit, and outside her then current geographical location," but "[i]n several instances," purportedly less-qualified male applicants were offered the positions. (Id.)
In the motion to compel company-wide discovery, Plaintiff seeks a ruling on "the general scope of discovery" in this action, rather than an order compelling particular responses to Plaintiff's discovery requests. (Mem. of Law in Supp. of Pl.'s Mot. To Compel (hereinafter, "Pl.'s Br.") [Doc. No. 47-2] 2.) The motion is brought because Defendant purportedly provided in discovery only those documents and information relevant to Plaintiff's Business Area, and only with respect to grade levels below the director level, for the period March 20, 2007 to the present, with the exception of data produced from Defendant's human resources database, for which Defendant has produced data from March 20, 2007 to March 16, 2009. (Id. at 3, 21.)*fn4 Plaintiff argues that in light of the allegations of the class action complaint, her discovery requests seeking company-wide discovery are relevant under Rule 26 of the Federal Rules of Civil Procedure. (Id. at 15-16, 18.) In this regard, Plaintiff contends that she requires information concerning director-level positions to support her allegation that female employees have been denied promotional opportunities or have slower career advancement than male employees. (Id. at 19.) Plaintiff also argues that company-wide discovery is necessary to meet the burden required to obtain class certification in light of the Third Circuit's ruling in In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 316 (3d Cir. 2008), because she will need to demonstrate that Defendant's common policies and practices have a disparate impact on females and that there is evidence of a pattern or practice of gender discrimination. (Id. at 16, 18.) Additionally, Plaintiff seeks an order defining the relevant time period for production of documents, as Plaintiff sought through her document requests production of documents from March 21, 2005, which is two years prior to the class period defined in the First Amended Complaint, to the present; documents from December 23, 2005, which is one year prior to the subclass period for the NJLAD claims, to the present; and documents from March 1995 through the present for computerized or electronic data and databases. (Id. at 21.)*fn5 Plaintiff argues that production of such information will not pose an undue burden to Defendant. (Id. at 22-23.)
In opposition, Defendant argues that company-wide discovery is not relevant to Plaintiff's claims because Defendant is comprised of different Business Areas and Business Units, each of which purportedly has discretion to implement policies, practices, and procedures, and consequently information relating to policies and procedures in Business Areas and Business Units other than those in which Plaintiff worked allegedly has no bearing on Plaintiff's claims. (Def.'s Br. in Opp. to Pl.'s Mot. to Compel (hereinafter, "Def.'s Opp. Br.") [Doc. No. 65] 4.) Defendant also argues that Plaintiff's discovery requests are vague and overbroad, requiring production of substantial amounts of information, and represents that it already spent more than $1.6 million responding to Plaintiff's discovery requests. (Id. at 5-7, 10-11.) Further, Defendant asserts that Plaintiff's alleged "mere conclusory allegations" of a company-wide policy or practice are insufficient to justify broad, company-wide discovery. (Id. at 17.) Defendant also argues that Plaintiff seeks irrelevant discovery and that she is not entitled to discovery about executive-level positions because she does not allege that she applied for such positions. (Id. at 20.) With respect to the temporal scope of discovery, Defendant contends that Plaintiff can only obtain discovery as of March 20, 2007, the beginning of the class period, because discovery purportedly "cannot properly extend to those outside the putative class." (Id. at 16.) Defendant additionally contends that even assuming Plaintiff seeks relevant information, at this stage of the litigation she should only be entitled to discovery on class certification issues. (Id. at 21-23.)*fn6 Finally, Defendant addresses the purported burden that would be imposed should Defendant be compelled to respond to Plaintiff's discovery requests, and argues that Plaintiff should be required to share in the costs that would be incurred if Defendant is compelled to produce discovery. (Id. at 26-32.)
In reply, Plaintiff states that Defendant focuses on unrelated issues and fails to address the relevant inquiry -- that is, whether the company-wide information sought by Plaintiff is relevant and discoverable. (Reply Mem. of Law in Further Supp. of Pl.'s Mot. to Compel Company-Wide Discovery (hereinafter, "Pl.'s Reply Br.") [Doc. No. 104] 1.) Plaintiff argues that merits discovery is appropriate at this stage of the litigation because the Court may consider the merits of the case in deciding class certification issues. (Id. at 4.) Plaintiff disputes that she is entitled only to information about job levels she applied for, arguing that her allegations of company-wide policies entitle her to discovery about director level positions to demonstrate that such policies result in females being denied promotional opportunities and having slower career advancement than male employees. (Id. at 6.) Plaintiff also asserts that she is entitled to discovery beyond the class period, including discovery that extends a reasonable number of years prior to the class period. (Id. at 8.) Plaintiff challenges Defendant's assertion of burden, arguing that Defendant has not established that production of the discovery sought by Plaintiff would be unduly burdensome. (Id. at 9-14.)
As this Court set forth in Hite v. Peters, No. Civ. A. 07-4492, 2009 WL 1748860, at *3 (D.N.J. June 19, 2009), "parties may 'obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense[.] . . .'" Hite, 2009 WL 1748860, at *3 (quoting FED. R. CIV. P. 26(b)(1)). Additionally, "the Court may . . . permit for 'good cause' discovery of matters that are 'relevant to the subject matter involved in the action.'" Id. "'Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.'" Id.; see also Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D. 101, 104 (D.N.J. 1990) ("[I]t is important to distinguish the right to obtain information by discovery from the right to use it at trial."). Thus, "relevancy is more liberally and broadly construed at the discovery stage than at trial." Hite, 2009 WL 1748860, at *3 (citing Nestle, 135 F.R.D. at 104). "The party resisting discovery 'has the burden of clarifying, explaining and supporting its objections.'" Id. (citing Nestle, 135 F.R.D. at 104). "Once the party resisting discovery meets this requirement, however, the burden is placed on the proponent of the discovery request to show that the information sought is relevant." Id. In the context of Title VII cases, "courts have been cautioned not to impose unnecessary limitations on discovery . . ." Kresefsky v. Panasonic Commc'n and Sys. Co., 169 F.R.D. 54, 64 (D.N.J. 1996). However, the scope of discovery in Title VII cases must be "'tailored to the issues involved in the particular case.'" Id. (internal quotation omitted).
Plaintiff relies on Gutierrez v. Johnson & Johnson, No. Civ. A. 01-5302, 2002 U.S. Dist. LEXIS 15418, at *1 (D.N.J. Aug. 15, 2002), in support of her motion to compel company-wide discovery. In Gutierrez, the plaintiffs filed a putative class action seeking to represent a class of persons of African or Hispanic descent who were employed by the defendant, a company that had thirty-two operating companies in eleven states throughout the United States. Id. at *2. The plaintiffs' theory of class-wide discrimination was "that decentralized and subjective decision-making permits individual managers at the local level to make discriminatory decisions." Id. at *5. The defendant sought a protective order to preclude company-wide discovery, arguing that the court should adopt a staged approach to discovery wherein the plaintiffs could obtain discovery from the companies at which the named plaintiffs were employed and thereafter, if warranted, obtain discovery from the defendant's other companies. Id. at *12. In denying the motion for a protective order, the Special Master noted that "[i]n employment discrimination cases, Courts generally grant wide latitude to a plaintiff or plaintiffs who seek to conduct company wide discovery" and that the relevant issue is "the extent to which the case involves a common employment policy or practice." Id. at *10-11 (citations omitted). The Special Master further noted that all parties will benefit from broad discovery, as the court, when ruling on class certification, "will have the necessary data before it to determine if the requirements of Fed. R. Civ. P. 23(a) are met." Id. at *14.
In this case, as in Gutierrez, Plaintiff asserts a general theory of class-wide discrimination that Defendant's uniform policies and procedures afford subjective decision-making authority to directors and officers, purportedly permitting these decision-makers to act in a discriminatory manner. According to the allegations in the First Amended Complaint, discrimination against female employees occurs because company-wide policies permit excessive subjectivity in determining eligibility requirements for promotion within the company. (First Am. Compl. [Doc. No. 17] ¶ 35.) Additionally, Plaintiff alleges that because open positions at Level 7 and above are not required to be posted on the corporate intranet, these positions are only made known through word of mouth, and successful candidates are purportedly disproportionately male. (Id. at ¶ 39.) Thus, Plaintiff has asserted a disparate impact theory in her First Amended Complaint and, as noted in Gutierrez, "that is all that is required at this stage to permit discovery to proceed." Gutierrez, 2002 U.S. Dist. LEXIS 15418, at *19. Accordingly, the Court finds that Plaintiff has demonstrated the relevance of company-wide discovery at this time.
In so finding, the Court notes that the parties submitted certifications in an effort to demonstrate whether Defendant is a single, cohesive corporate entity, as argued by Plaintiff, or a "complex organization comprised of multiple entities and their varied subcomponents," as argued by Defendant. (See Pl.'s Br. 5-6; Def.'s Opp. Br. 18.)*fn7 However, Plaintiff's allegations in the First Amended Complaint of uniform company policies and practices, such as the averments that "[r]egardless of business area, the policies relating to pay, assignment and promotion are uniform," and a corporate-wide policy that does not require open positions at level 7 and above to be posted on the corporate intranet (see First Am. Compl. [Doc. No. 17] ¶¶ 29, 36), are sufficiently asserted to lead this Court to conclude that discovery into other Business Areas and Business Units constitutes relevant discovery under Rule 26(b).*fn8 See Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D. Kan. 1999) ("A party does not have to prove a prima facie case to justify a request which appears reasonably calculated to lead to the discovery of admissible evidence.").
The Court rejects Defendant's position that Plaintiff is not entitled to discovery concerning the director level and above because Plaintiff does not allege that she applied for jobs at such levels. (Def.'s Opp. Br. 20.) In the First Amended Complaint, Plaintiff alleges on behalf of a putative class that female employees are not promoted to director-level positions at the same rate as male employees due to uniform, company-wide policies and practices. (See Pl.'s Reply Br. 6.) Plaintiff is entitled under Rule 26 standards to discovery in support of this allegation on behalf of the putative class, including information about director-level positions. Notably, for class certification purposes, Plaintiff may rely on an expert's statistical analysis of the amount of time it takes female employees to reach director-level positions, which would necessarily require discovery of information about director-level employees. See Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 161 (N.D. Cal. 2004), aff'd, 474 F.3d 1214 (9th Cir. 2007), reh'g en banc, 2010 WL 1644259, at *1 (9th Cir. Apr. 26, 2010).*fn9 Similarly, discovery about director-level employees is necessary to determine whether those employees were, in fact, similarly situated individuals to Plaintiff and the class. Conversely, Defendant may rely on information about director-level employees to demonstrate that such employees were not similarly situated to Plaintiff and advanced due to their individual attributes rather than a policy of discriminating based upon gender. Therefore, information about director-level employees will be necessary to determine whether promotion disparities exist and, if so, whether they are attributable to gender discrimination rather than non-discriminatory reasons. Discovery of information about director-level positions is, consequently, relevant under Rule 26 standards.*fn10
The Court similarly rejects Defendant's assertion that Plaintiff is not entitled to discovery concerning Business Areas other than those areas in which Plaintiff has worked. Plaintiff's class claims are not limited to the Business Area in which Plaintiff has worked; rather, Plaintiff seeks to assert a claim on behalf of female employees in all of Defendant's Business Areas. Thus, the scope of the claims in this case extends beyond the specifics of Plaintiff's individual claims, and ...