9th Circuit, Document Review, Gender, Labor / Employment, SCOTUS, Technology, Wal-Mart, Women's Issues

Dukes Proving To Be a Hazard to Wal-Mart

In 1995, Betty Dukes took a job at a Wal-Mart near San Francisco, working as a cashier and greeter for $5 an hour. A “greeter” represents the face of the company as consumers walk through the door. Little did Dukes and Wal-Mart know that Dukes would ultimately become a face of Wal-Mart nationally, under much different circumstances. 

Today, the U.S. Supreme Court will hear oral arguments in Wal-Mart v. Dukes. Dukes is now the lead plantiff in a gender bias suit that may become the largest class action in American history, with attorneys for Dukes seeking to represent a class of possibly 1.6 million women. SCOTUS will be determining if the plaintiff cases against Wal-Mart are sufficiently related for them to be certified as a class. 

So what does this have to do with legal technology, which is what I cover for ATL? Everything. And no matter what the court decides, the legal and technological ramifications of this case do not bode well for the retail giant… 

Betty Dukes, front, with other plaintiffs.

First, here’s some background on Dukes. As mentioned above, Betty Dukes was hired by Wal-Mart  as a part-time cashier in 1995. She enthusiatically accepted the position with the hope that it would lead to bigger things. Wal-Mart constantly stresses advancement from within its ranks, and Dukes saw this job as a way to start a new chapter in her life.

Although her hourly wage increased from $5 to $15 an hour over a five-year period, Dukes eventually felt she was not advancing as much as she had hoped. After bringing this to the attention of management, her situation seemed to take a turn for the worse. She was admonished for taking too long on her breaks and her hours were cut back. All of this finally came to a boil in an incident after she was demoted when she asked a colleague to do a one-cent cash register transaction in order to make some change. Although against the rules, Dukes claimed that this practice was commonplace in the store. 

After consulting with the Impact Fund, a non-profit working for social justice through strategic litigation, Dukes quickly found out that she wasn’t the only one who felt her dreams of advancement at Wal-Mart had been curtailed by upper management.  Apparently, several other women had come forward with stories similar to that of Dukes. The AP and The Root tell the stories of other women here and here, respectively. 

In 2001, Dukes brought a gender discrimination suit against Wal-Mart in the U.S. District Court in San Francisco. The Impact Fund asked her to serve as the lead plantiff for a class that could eventually include over a million women who are current or past employees of the Arkansas-based retail chain. The District Court granted the certification and it was affirmed by the U.S. Court of Appeals for the Ninth Circuit, but the case was put on hold when the Supreme Court agreed to hear the appeal from Wal-Mart.

I recently had a chance to speak with Rudy Rouhana of legal technology company Daegis about this case. As a founder of the technology company Stored IQ, and someone who later attended Catholic University Law School, it’s fair to say Rouhana knows a lot about technology and law. He now handles product marketing for Daegis. 

As Rouhana notes, Wal-Mart executives obviously want to block this suit because they don’t want to face a class of millions in court. If the company could deal with these cases individually instead, there would likely be a much smaller number of them compared to the potential class size if this case moves forward.Yet, Rouhana believe that even a much smaller group of lawsuits will still be an incredible headache for Wal-Mart when it comes to the technological and discovery challenges. 

“I think that either way Wal-Mart will have to do an equal amount of preservation, because they will still have to anticipate litigation from all the individuals even if they don’t all individually wind up filing claims against Wal-Mart.  However, the actual volume of data that they will have to collect, process and review will likely be less since not 100% of the people eligible to join the class action will go further with an individual lawsuit.” 

Rouhana highlighted for me why this case could throw Wal-Mart into technological turmoil. 

“Software requires a new index for each case, so data has to be re-indexed for each new matter. This can quickly consume a software license that is based on volume pricing, such as per gigabyte. Not to mention the time to re-index and the data management dealing with multiple copies of the data for each matter. In addition, different outside counsel is assigned to different cases for a variety of reasons, such as regional concerns. In this instance, one firm may not want to rely on the calls made by reviewers from another firm; despite the fact that emails from Wal-Mart executives may have already been reviewed for relevancy and privilege by one firm, the other will want to perform its own review.” 

So basically, if Wal-Mart wins, it will have to deal with one of the biggest legal technology/e-discovery challenges in history. And if the company loses, they face the biggest class action suit in our nation’s history. Not exactly a win-win

“If I were a lawyer for Wal-Mart,” said Rouhana, “I wouldn’t feel good about this either way,” 

Gabe Acevedo is an attorney in Washington, D.C. and the publisher of the e-discovery blog GabesGuide.com. His articles on legal technology and discovery issues appear regularly on Above The Law. You can reach him at gabe@abovethelaw.com and follow him on Twitter.

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