Me Three - the Court Questions Your Buddy's Testimony

The Supreme Court took up the issue of "me too" evidence in discrimination claims on Monday, hearing arguments in Mendelsohn v. Sprint. The case hinges on whether or not testimony of other employees who were allegedly discriminated against ("me too" evidence) is admissible as circumstantial evidence of another employee's alleged discrimination. Did that make sense?

It's like this. You sue your employer. I say "hey, that happened to me, too" (thus the catchy name) usually under a different supervisor. I testify at your trial as to my events, thus providing "evidence" that your discrimination happened.

As always, SCOTUSblog (and now the awesome SCOTUSwiki - my new favorite website) has the best coverage. Not to be outdone the New York Times has a synopsis of the orals, noting that the Roberts Court seemed to be more conservative than Bush's EEOC, which would like to allow "me too" information when it can jive with the relevance and nonprejudicial rules of evidence.

Most of the Court seemed to think that letting in "me too" evidence would necessitate "minitrials" within trials to determine whether or not the information was accurate, and therefore relevant. From Paul Cane's Argument for Sprint:

Had the "me, too" evidence been admitted, then we would have had to respond with what might be called "not you, either" evidence. And then the plaintiff would have made a rebuttal to that showing, and we would have had trials within a trial on whether these couple of persons that plaintiff identified as potential bad actors were, in fact, bad actors...

I think they should disallow the use of the evidence until someone comes up with descriptions that don't make us sound like we're fighting over a Tonka truck.

Justice Souter said the evidence would be highly prejudicial, but could be probative too. After all, if your supervisor is discriminating and mine is discriminating, isn't that a sign of something? Not surprisingly, Justice Scalia didn't think so. Turns out, this is a really good oral transcript to read if you're a 2L stuck in evidence, because it goes to show you can be a Supreme Court Justice and still not know what Rule 403 really covers.

And then Justice Breyer sort of went off the deep end a little and said that "me too" evidence couldn't be allowed in or "[w]e’ll have trials that last a thousand years..."

A thousand years. Hmm. So, like longer than the time between now and the Magna Charta. Maybe the Court should start taking on more mandatory retirement cases...

Anyway, as posted here, this decision could have pretty sweeping effects on future pattern and practice cases. It's unlikely this is an issue the Court will balk on (unlike, say, 401(k) recovery for individual claimants).