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Plaintiffs in a class action job discrimination suit against Johnson & Johnson are entitled to companywide discovery and do not have to proceed in stages, despite defense claims that producing all the documents at once is burdensome, a federal court has ruled. Denying the company’s request for a protective order, retired U.S. District Judge Nicholas Politan in New Jersey agreed with the plaintiffs that limiting initial discovery would artificially limit the available data and generate less reliable results. “Such a limitation is an unacceptable statistical procedure to turn a large sample into a small one by arbitrarily excluding observations,” Politan wrote Aug. 12 in Gutierrez v. Johnson & Johnson, No. 01-5302. Politan was appointed by U.S. District Judge William Walls of the District of New Jersey as special master in the suit, filed last November, which alleges that J&J discriminated against Hispanic and black employees throughout the pharmaceutical company and its subsidiaries. At issue were four deposition notices and a document request seeking information on J&J’s employment practices and policies, equal employment opportunity performance, centralized data on compensation and promotion and the role, if any, of its board of directors in monitoring or overseeing the company’s equal employment performance. J&J argued the discovery was burdensome and initially should be limited to the subsidiaries where the named plaintiffs worked, with disclosure expanded only if evidence of discrimination was found at those entities. Specifically, J&J sought to limit the discovery to compensation claims by Hispanic business-finance professionals at Johnson & Johnson Services in New Brunswick, N.J., and to promotion claims by black officials and managers at Ethicon Inc. in Somerville, N.J. The narrowed area of inquiry concerned the claims of the two named plaintiffs. Nilda Gutierrez, who worked as a recruiting consultant for J&J Services, alleged she was denied salary increases and bonuses because of her ethnic background. Linda Morgan, a black woman employed as a midlevel manager at Ethicon, contended that her qualifications for director of purchasing equaled or exceeded those of the five white men considered for the slot but that she was not even interviewed. Politan pointed out that both sides would benefit from a broad examination of the data and that the plaintiffs’ approach “promotes expedient litigation and conserves judicial resources” by avoiding repeated court appearances. Politan rejected J&J’s argument that discovery should be limited on the basis that class certification was untenable, stating that certification was a separate question and only “patently frivolous” class allegations should be struck before plaintiffs had a chance to conduct discovery. Politan didn’t buy the defense claims that the requests were overly burdensome. Though the plaintiffs requested data on 34 subsidiaries, all the information sought is stored at J&J’s New Brunswick headquarters. Bennet Zurofsky, the plaintiffs’ local counsel, says the disputed discovery will “plainly … show the disparate impact of J&J employment policies. I suspect that J&J knows that. That’s why they’re working so hard to try to keep us from getting it,” says Zurofsky, a partner with Reitman Parsonnet in Newark, N.J. J&J lead counsel Ted Wells calls the ruling reasonable but points out that it “does not address the merits of any of the plaintiffs’ claims of alleged discrimination and Johnson & Johnson is confident that the evidence will ultimately establish the fairness of its employment practices.” Wells is a partner with New York’s Paul, Weiss, Rifkind, Wharton & Garrison. The plaintiffs’ legal team also includes Johnnie Cochran Jr. of Los Angeles and Cyrus Mehri, of Washington, D.C.’s Mehri & Skalet.

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