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EXHIBIT E

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LEXSEE 1991 U.S. DIST. LEXIS 11177

PAUL KAS, individually and on behalf of all others similarly situated, Plaintiff, v. PRATT & WHITNEY, a consolidated subsidiary of UNITED TECHNOLOGIES CORP., a Delaware Corporation, Defendant
Case No. 89-8343-CIV
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
1991 U.S. Dist. LEXIS 11177

March 18, 1991, Decided March 18, 1991, Filed
CASE SUMMARY:

(HNI) Section 7(b) of the Age Discrimination in Employment Act (ADEA), 29 Us.es. § 621 et seq. incorporates the enforcement provisions of the Fair Labor

PROCEDURA POSTURE: Plaintiff employee
brought a class action under the Age Discrimination in

Standards Act of 1938 (FLSA), 29 Us.es. § 201, et

seq. That section provides that the ADEA shall be enforced using certain powers, remedies, and procedures of the FSLA.

Employment Act, 29 Us.es. § 621 et seq. The employee and defendant employer filed various discovery motions and other pretrial motions.

OVERVIEW: The employee requested from the employer production of documents concernng the employer's adopted effciency scheme (AVA process),
which allegedly effectively termated the employee and others in the class. The employee also sought documents concerning hiring decisions and employment records. The employer made blanket objections to each request to produce. The court held that some of the documents and
records sought by the employee could possibly lead to the discovery of admssible evidence. The cour required
that the employer provide documents concernng the

Civil Procedure:; Class Actions (HN2) 29 Us.es. § 216(b) provides that an action may be maintained against any employer in any federal or state court of competent jurisdiction by anyone or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be
a part plaintiff to any such action unless he gives his

consent in writing to become such a part and such con-

sent is fied in the cour in which such action is brought.

A V A process and certain budget and financial projections.

Civil Procedure:; Class Actions:; Prerequisites

(HN3) Under Fed. R. Civ. P. 23, each person is considered to be a class member, and as such is bound by the

OUTCOME: The cour ordered the employer to provide discovery documentation to the employee. The employer's motions to strike and for reconsideration were

judgment, whether it is favorable or unfavorable, unless he has "opted out" of the lawsuit. On the other hand, under 29 Us.es. § 216(b), no person can become a part

denied. The employee's motion for a protective order was denied.

LexisNexis(R) Headnotes

plaintiff and no person will be bound by or may benefit for judgment unless he has affrmtively "opted into'" the class. The plain language of § 216 requires that the "optin" plaintiffs must also be similarly situated to the named
plaintiff.

Labor & Employment Law :; Discrimination :; Age
Discrimination:; Coverage & Definitions

Labor & Employment Law :; Discrimination :; Disparate Impact

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1991 U.S. Dist. LEXIS 11177, *

(HN4) In suits brought pursuant to the Age Discrimination in Employment Act, 29 Us.es. § 621 et seq., in which disparate impact discrimination has been alleged,
the United States Cour of Appeals for the Eleventh Cir-

(HN7) In actions brought under the Age Discrimination in Employment Act, 29 Us.es. § 621 et seq., a plaintiff claiming disparate treatment bears the ultimate burden of
proving that age was a determnig factor in the defendant's decision to fire them.

cuit sets the standard and burdens of proof for Title VII claims as follows: the plaintiffs burden in establishing a prim facie case goes beyond the need to show that there is a statistical disparity in an employer's work force. Rather, it must demonstrate that the application of a specific or particular employment practice has created the disparate impact which is under attack.

Labor & Employment Law :; Discrimination :; Disparate Treatment

(HN8) In disparate treatment suits pursuant to the Age
Discrimiation in Employment Act, 29 Us. es. § 621 et

seq., a plaintiff can establish a prima facie case of discrimination by presenting direct evidence of discrimina-

Labor & Employment Law :; Discrimination :; Disparate Impact (HNS) In disparate impact suits brought pursuant to the Age Discrimination in Employment Act, 29 Us.es. §
621 et seq., a rebuttable presumption is created once a
prima facie case has been established, and the burden

tory intent. Direct evidence of discrimnation is that, which if believed, would prove the existence of a fact
without inference or presumption. Also, the plaintiff can meet the modified four pronged test set out in Title VII cases under McDonnell Douglas.

then shifts to the defendant to produce evidence justify-

ing its use of the challenged practice. In considering the justification the dispositive issue is whether a challenged
practice serves, in a significant way, the legitimate em-

Labor & Employment Law :; Discrimination :; Disparate Treatment

\

ployment goals of the employer. An insubstantial justifi-

cation wil not suffice in this analysis, but there is no
requirement that the challenged practice be essential or indispensable to the employer's business for it to pass
muster.

(HN9) In actions brought pursuant to the Age Discrimination in Employment Act, 29 Us.es. § 621 et seq., the United States Cour of Appeals for the Eleventh Circuit uses a variation of the four-pronged test, by which a

plaintiff can establish a pria facie case with circumstantial evidence. In such an instance, the plaintiff must
show: (1) that he is a member of the protected group; (2) that adverse employment action was taken against him,

Labor & Employment Law :; Discrimination :; Disparate Impact (HN6) In disparate impact suits, if the employer can
meet its burden of producing evidence .of a legitimate business justification, the plaintiff then bears the ultimate

e.g. discharge, demotion, or failure to hire; (3) that he
was replaced by a person outside the protected group; and (4) that he was qualified for the position for which he was rejected.

burden of disproving an employer's assertion that the
adverse action or employment practice was based solely on a legitimate impartial consideration. In such an in-

Labor & Employment Law :; Discrimination :; Disparate Treatment
(lINI0) In disparate treatment actions brought pursuant

stance, the plaintiff can prevail if the finder of fact is persuaded that alternative practices exist which would
(1) meet the defendant's employment goals and (2) re-

to the Age Discrimination in Employment Act, 29

Us. es. § 621 et seq., the plaintiff can establish a prima

duce the disparate impact of curent practices. An employer's refusal to adopt these alternatives would belie the employer's claim that their incumbent practices are being employed for nondiscriminatory reasons. Mere suggestion by the plaintiff, however, of an alternative practice in achieving the employer's goals is insuffcient
in itself. Factors such as costs or burdens imposed by the alternative practices may be relevant in determining

facie case through the presentation of statistical proof of a pattern of discrimination.

Labor & Employment Law :; Discrimination :; Disparate Treatment

whether they are equally effective in serving the employer's legitimate business goals.

(HNll) In disparate treatment actions, once a prima facie case of discrimination has been established, a rebuttable presumption arises and the burden them shifts to the defendant to artculate some legitimate, non-discriminatory

reason for its action. Once this burden has been met, the plaintiff bears the ultimate weight of showing by a pre-

Labor & Employment Law :; Discrimination :; Disparate Treatment

ponderance of the evidence that the defendant's legiti-

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1991 U.S. Dist. LEXIS 11177, *

mate reasons did not actually motivate its conduct, but
were merely a pretext for discrimination.

COUNSEL: (*1)

Wiliam R. Arnong of Arnong & Arnong, P.A, Ft Lauderdale, Florida and Neil Flaxman, for Plaintiff.

Civil Procedure :; Discovery Methods :; Requests for
Production & Inspection (HNI2) Fed. R. Civ. P. 34 provides that a request to produce may contain matters within the scope of Rule 26(b)

Patricia Lowry of Steel, lIector, Davis, Bivans and
Middleton, West Palm Beach, Florida, for Defendant.

JUDGES:
James C. Paine, United States District Judge.

and which are in possession, custody or control of the part upon whom the request is served.
Civil Procedure:; Disclosure & Discovery :; Relevance
may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the part seeking discovery or to the claim or

OPINIONBY:
PAINE

(HN13) Fed. R. Civ. P. 26(b)(1) provides that parties

OPINION:
OMNIBUS ORDER II

Before the cour is the Plaintiffs, PAUL KAS
("KAS"), Motion to Compel Better Responses to Plaintiffs' First Request for Production (DE 54), Motion for
Protective Order at to Opt-In Class Interrogatories and

defense of any other part. It is not ground for objection that the information sought wil be inadmissible at the trial if the informtion sought appears reasonably calculated to lead to the discovery of admissible evidence.

Civil Procedure:; Disclosure & Discovery :; Relevance
(HNI4) With respect to the issue of

Request for Production (DE 78), Motion for Protective Order as to Takig Depositions (DE 87), the Defendant's, PRATT & WHITNEY ("PRATT"), Motion to Strike (DE 46), Motion for Reconsideration and Memorandum in
Opposition to Plaintiffs Motion for Enlargement of

relevancy of discov-

Time

ery, discovery rules are to be accorded a broad and liberal treatment.

Regarding Evans and Diaz (DE 105) and Motion for Scheduling Order. Followig a hearing on these matters
and after having reviewed the record, the memoranda of
counsel and the law, the cour enters the following order

Civil Procedure:; Disclosure & Discovery :; Relevance (HN15) The key phrase in Fed. R. Civ. P. 26(b)(1) "relevant to the subject matter in the pending action"- is

for the reasons set forth hereinafter.
BACKGROUND

constred broadly to encompass any matter that bears on,
or that reasonably could lead to other matter that could

bear on, any issue that is or may be in the case. Consistently with the notice pleading system established by the Rules, discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues. Nor is discovery limited to the merits of a case, for a variety of fact-oriented issues may arise during litigation that are not related to the merits.

On August 1, 1989, the subject suit was institued by the Plaintiff "as representative of and for and on behalf of all other persons similarly situated. . ." (DE 8 at (*2) 5), pursuant to the Age Discrimination and Employment

Act ("ADEA"), 29 Us.c. § 621, et seq. In his First
Amended Complaint (DE 8), KAAS, a 57-year-old former employee of the Defendant, states that he was one of 303 salaried employees who were termnated through its "Activity Value Analysis" ("AVA") effciency scheme in 1988. The Plaintiff contends that he and other salaried employees were discharged as a result of their refusalto accept an early retirement package that had been offered by PRATT in 1986 and 1987. KAS further alleges that

Labor & Employment Law :; Discrimination :; Age
Discrimination:; Remedies (HNI6) Once a verdict has been rendered in favor of a

Age Discrimiation in Employment Act (Act), 29

upon his and other older salaried employees termnations, the Defendant hired workers under the age of fort to replace them. Specifically, the Plaintiff contends that
as PRATT was reducing its work force under the A V A

Us.c.s. § 621 et seq., plaintiff, 29 Us.c.s. § 626(b) authorizes the district cour to grant such legal or equitable relief as may by appropriate to effectuate the purposes of the Act. The selection of relief or remedies is a matter of the trial cour's discretion, so long as the relief granted is consistent with the puroses of the Act.

scheme, it was simultaneously hiing 775 new, younger
and cheaper employees for similar positions through employment practices (e.g., college campus recruiting).

The Plaintiff seeks on behalf of himself and all others similarly situated: (1) a permnent injunction enjoin-

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1991 U.S. Dist. LEXIS 11177, *

ing PRATT and/or its parent corporation, UNITED TECHNOLOGIES CORP., from continuing to violate their rights; (2) reinstatement to their former positions or
to (*3) positions similar in responsibilities and pay,

(emphasis added).

There is, however, a fundamental difference between a class action pursued under Rule 23 and under §

with appropriate back pay and benefits; (3) an order re-

quiring PRATT to pay front-pay, fringe benefits and
other compensation to any member of the class not reinstated, until they attain the age of 70; and (4) costs and
attorneys' fees.

In its Omnibus Order dated June 18, 1990 (DE 42),
the cour held that KAS had "complied with the 'opt in' or 'consent' provisions of § 216(b) by submitting to the
cour Notices of

216(b). LaChapelle v. Owens-Ilinois, Inc., 513 F.2d 286 (5th Cir. 1975). nl (HN3) Under Rule 23, each person is considered to be a class member, and as such is bound by the judgment, whether it is favorable or unavorable, uness he has "opted out" of the lawsuit. Id. at 288. On the other hand, under § 216(b), "no person can become a part plaintiff and no person wil be bound by
or may benefit for judgment unless he has affiratively

Filing Consents to Join Action as part's

'opted into' the class." Id. Even then it is obvious from the plain language of Section 216 that the "opt-in" Plain-

Plaintiff' and that the Plaintiff

had "suffciently complied

tiffs must also be similarly situated to the named Plaintiff.

with the requirements under § 216(b) for bringing a
class action pursuant to the ADEA." (DE 42 p.7) In addition, the order approved the language of the notice and consent form which the Plaintiff was to submit to potential "opt-in" class members. As the case had been pending for over eleven months, a cut-off date for the filing of new consents was set at fort-five days following KAS'

nl The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11 th Cir. 1981), adopted as precedent deci-

mailing of the notices. This was done on August 17,
1990, resulting in a cut-off date of October 2, 1990.
SIMILARLY SITUATED
(*6)

sions of the former Fifth Circuit rendered prior to October 1, 1981.

In its numerous filings, as well as at the recent status conference, PRATT has argued that there should be a
determation (*4) as to whether any of the approxi-

Although the cour's Omnibus Order (DE 42) stated that the Plaintiff had suffciently complied with certifying a class under ADEA and that KAAS was "similarly

mately one hundred individuals who have "opted-in" this

situated" to potential members, forml certification and
the contours of the class was never set forth. This, how-

action are in fact "similarly situated" to KAS before
extensive discovery takes place. As examples of extreme mis-joinder, PRATT points out one member of the opt-in class is just 29 years old, while another was employed in the Defendant's Connecticut facility.
ADEA CLASS CERTIFICATION

ever, could be inferred from the language of the order
and the notice sent to prospective class members.

Consequently, in clarification of its prior order, the following class is hereby conditionally certified:
Any and all employees who were at any tee from August 1988 to August 17, 1990:
(a) 40 years old or older;

(HNl) Section 7(b) of the ADEA incorporates the enforcement provisions of the Fair Labor Standards Act of 1938 ("FLSA"), 29 Us.c. § 201, et seq. That section provides that the ADEA shall be enforced using certain powers, remedies, and procedures of the FSLA. In contrast to a class action initiated under Rule 23 of the Federal Rules of

(b) employed by Pratt & Whitney's West Palm Beach
facility;

Civil Procedure, 29 Us.c. § 216(b) is not

very detailed it in guidelines for permssible class lawsuits. (HN2) It provides in part that an action:

(c) involuntarily discharged, laid off or termnated from employment by Pratt & Whitney;

may be maintained against any employer. . . in any Federal or State court of competent jurisdiction by anyone or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a part plaintiff to any such action unless

(d) subjected to such adverse employment actions as described in (c) in connection with the staff reduction undertaken by Pratt & Whitney in connection with the
Activity Value Analysis.

he gives his consent in writing to become such a part

(*5) and such consent is filed in the cour in which such
action is brought.

In conditional certifying the class, the undersigned does so without prejudice to the respective partes' rights to later move for decertification of this proceeding as a class action. Upon completion of discovery, PRATT may

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challenge the joinder of any part (*7) as to whether
they

Plaintiff then bears the ultimate burden of disproving an
employer's asserton that the adverse action or employ-

are in fact "similarly situated." Consequei:tly, i.e~~ingful discovery is essential in order to expedite ths litigation.
DISCOVERY: BURDEN OF PROOF

Another reason why substantial discovery must take place is because of the respective burdens of proof which
each side must meet as a result of the allegations made

ment practice was based solely on a legitimate impartial consideration. Id. In such an instance, the Plaintiff can prevail if the finder of fact is persuaded that alternative practices exist which would (1) meet the Defendant's employment goals and (2) reduce the disparate impact of
curent practices. Id. An employer's refusal to adopt

these alternatives would "belie (the employer's claim)

by the Plaintiff. An examination of his Amended Complaint (DE 8) reveals that KAAS is apparently relying on
two theories of discrimination in his claims against

that their incumbent practices are being employed for
nondiscriminatory reasons. Id., 490 U.S. at ; 109 S. Ct.
at 2126-27.

these, disparate impact, is explicitly set forth in paragraphs 15 and 16, while the second, disparate treatment, is implied in his allegations.
PRATT. The first of

Mere suggestion by the Plaintiff, however, of an alternative practice in achieving the employer's goals is

insuffcient in itself. Id., 490 U.S. at ; 109 S. Ct. at
2127. (*10) Factors such as costs or burdens imposed by the alternative practices may be "relevant in determning

DISPARATE IMPACT

(HN4) In suits brought pursuant to the ADEA, in
which disparate impact discrimination has been alleged,
the Eleventh Circuit has adopted the standard and bur-

whether they are equally effective in serving the employer's legitimate business goals." Id. (quoting Watson

dens of proof for Title VII claims as set forth in Wards
Cove Packing Co. v. Antonio, 490 us. 642; 109 S. Ct.
2115 (1989) and Watson v. Fort Worth Bank & Trust

v. Fort Worth Bank & Trust Co., 487 Us. 977, 998
(1988)).
DISPARATE TREATMENT

Co., 487 US. 977 (1988). See, MacPherson v. University
of Montevallo, 922 F.2d 766 (11th Cir. 1991). Under

Wards Cove, (*8) the Plaintiffs burden in establishing a prima facie case goes beyond the need to show that there is a statistical disparity in an employer's work force.
Wards Cove, 490 U.S. at ; 109 S. Ct. at 2124. Rather, it

The Plaintiff appears to have also alleged a disparate treatment theory of age discrimination in his Amended

Complaint. n3 (HN7) In actions brought under the
ADEA, a Plaintiff claiming disparate treatment bears the

ultimate burden of proving that age was a determning
factor in the Defendant's decision to fire them. Young v.

must demonstrate that the application of a specific or partcular employment practice has created the disparate
impact which is under attack. n2 Id.

General Foods Corp., 840 F.2d 825, 828 (11th Cir.
1988).

n2 In the present case, KAS alleges that the
A VA process and PRATT's outside recruiting ef-

forts had a disparate impact on workers 40 years
old and over.

n3 KAAS states that in 1986 and 1987, he and older employees declined to accept an early retirement package. Following this rejection, PRATT instituted the A VA process which was designed to eliminate older workers.
(HN8) In such instances, a Plaintiff can establish a
prima facie case of discrimination in at least three (*11)

(HN5) A rebuttable presumption is created once a
prima facie case has been established, and the burden

then shifts to the Defendant to produce evidence justifying its use of the challenged practice. Id., 490 U.S. at ; 109 S. Ct. at 2125. In considering the justification "the

ways. First, it can present direct evidence of discrimina-

tory intent. Direct evidence of discrimation is that,
which if believed, would prove the existence of a fact without inference or presumption. Castle v. Sangamo
Watson, Inc., 837 F.2d 1550,1558 n.13 (11th Cir. 1988).

dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer." Id., 490 U.S. at ; 109 S. Ct. at 2125-26. An (*9) insubstantial justification wil not suffce in this analysis, but "there is no requirement that the challenged
practice be 'essential' or 'indispensable' to the employer's business for it to pass muster." Id., 490 U.S. at ; 490 S.

An example of direct evidence would be a document saying "Fire Kaas--he is too old." Willams v. General
Motors Corp., 656 F.2d 120, 130 (5th Cir. Unit B 1981).

Second, the Plaintiff can meet the modified four

Ct. at 2126.

pronged test set out in Title VII cases in McDonnell
Douglas Corp. v. Green, 411 Us. 792 (1973). (HN9) In ADEA suits, the Eleventh Circuit has adopted a variation

(HN6) If the employer can meet its burden of producing evidence of a legitimate business justification, the

of the four-pronged test, by which a Plaintiff can estab-

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lish a prima facie case with circumstantial evidence. In

Motion to Compel Better Responses to Plaintiffs First
Request for Production (DE 54).

such an instance, the Plaintiff must show:
(1) that he is a member of the protected group; (2) that

adverse employment action was taken against him, e.g. discharge, demotion, or failure to hire; (3) that he was
replaced by a person outside the protected group; and (4)

n4 The Plaintiff states that the Defendant has

provided him with the following: (1) KAS's
personnel file, without any paperwork showing
how he was chosen to be termnated as part of the

that he was qualified for the position for which he was
rejected.

AVA process; (2) copies of the charge of discrimination that KAS fied with the Equal Employment Opportnity Commssion ("EEOC")

Carter v. City of Miami, 870 F.2d 578, 582 (1Ith Cir.
1989). (*12)

(HN10) Finally, the Plaintiff can establish a prima facie case through the presentation of statistical proof of a pattern of discrimnation. Baker v. Sears, Roebuck &
Co., 903 F.2d 1515 (11 th Cir. 1989).

and the Notice of Charge of Discrimiation that the EEOC sent PRATT; (3) a blank copy of the separation agreement/waiver form; (4) ten pages of job recruiting material dealing with efforts to

fill two jobs, one in the sumer of 1990, the
other in May of 1989; and (5) two internal manuals instrcting managers how to participate in the selection process for choosing workers to termnate as part of the A V A.
(* 14)
Notwithstanding their objections to providing

(HNll) Once a prima facie case of discrimiation
has been established, a rebuttable presumption arises and the burden them shifts to the Defendant to artculate some legitimate, non-discriminatory reason for its action. Texas Dep't of Community Affairs v. Burdine, 450 Us.

248, 253 (1981). Once this burden has been met, the
Plaintiff bears the ultimate weight of showing by a preponderance of the evidence that the Defendant's legiti-

KAS with his discovery requests, the Defendant, on
December 3, 1990, propounded Interrogatories and Re-

mate reasons did not actually motivate its conduct, but
were merely a pretext for discrimination. Id.
DISCOVERY: THE LONG AND WINDING ROAD

quest for Production as to the approximately one hundred
members of the class. Soon thereafter, PRATT noticed

In its Omnibus Order dated June 18, 1990, the cour denied the Defendant's Motion for Protective Order (DE

25) in which PRATT sought to stay merit discovery
pending a determation of the issues of similarity of situation and who may opt-in to this action. The undersigned stated at that time that:

the taking of the depositions of all the "opt-in" Plaintiffs. In tun, KAAS filed a Motion for Protective Order as to Opt-In Class Interrogatories and Request for Production (DE 78) and a Motion for Protective Order as to Taking Depositions (DE 87) in which he asked that the class be
allowed to forego responding to the Defendant's discov-

ery requests and undergoing depositions until PRATT provided the discovery that he sought. lIe maintained at
that time that in order to answer many of the Interrogato-

Discovery regarding the merits of the case should proceed. If Defendant has specific (*13) objections to the discovery sought on behalf of KAS, either individually or as a representative of the class, it should make those objections known to Plaintiff in order that Plaintiff may
respond and this litigation may proceed.
Shortly thereafter, the Plaintiff

ries, as well as provide the requested records at their
depositions, the opt-in Plaintiffs would need access to the
sought after discovery.

LIGHT AT THE END OF THE TUNNEL

made twenty-five re-

quests from PRATT for production of documents and
things concernng the A V A process, hiring decisions and

In view of the conditional certification class and the provision for possible decertification following discovery, the following guidelines are hereby set forth:
(1) PRATT shall forthwith provide the Plaintiff with
KAAS's complete personnel fie, as well (*15) as the

employment records. In response, PRATT has made
various blanket objections to each request on the grounds

that they are overbroad, burdensome, expensive, irelevant, ambiguous, vague, or that the materials sought are either protected by the attorney-client privilege or confidentiaL. n4 More importantly, and in seeming obliviousness to the cour's prior order, PRATT again argued that it should not have to undergo extensive discovery until it is has been determned which of the "opt-ins" are "simlarly situated." On October 10, 1990, the Plaintiff filed a

complete personnel fies of all individuals who have
opted into this action.

(2) PRATT shall provide the Plaintiff with (a) the hiring date; (b) the termnation date; (c) the age at termnation and/or hiing; (d) the salary at hiing and/or termnation; (e) educational background; (f) experience; and (g) the position and/or job description hired for or termnated from, of all employees at their West Palm Beach

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1991 U.S. Dist. LEXIS 11177, *

facility, who were either hied or fired from the date the instituion of the AVA process until August 17, 1990.
The names of these employees are not to be disclosed.

Plaintiffs Motion to Compel Better Responses to Plain-

tiffs First Request for Production (DE 54) is D IN
PART, DENIED IN PART. PRATT shall provide the
Plaintiff

(3) KAS and other members of the class shall respond to the Defendant's discovery requests within thiy

with the following:

(30) days of the date of this order. The Defendant may
renotice the taking of depositions thi (30) days after it

provides the Plaintiff with the requested discovery.

(a) Items 1,3 and 4. Insofar as the AVA process and its institution is focus of the Plaintiffs discrimiation theories, the requested records may be relevant. Item 4 is limited to those individuals who have opted into the
class.

ADDITIONAL DISCOVERY: MOTION TO
COMPEL
the Federal Rules of Civil Proce(HN12) Rule 34 of dure provides that a request to produce may "contain

(b) Items 5(e) and (t). Since KAAS alleges that the AVA process was eliminating older workers and PRATT was replacing them with younger workers from college
recruitig practices, (*18) this informtion could be

matters within the scope of Rule 26(b) and which are in possession, custody or control of the part upon whom the request is served." (HN13) Rule 26(b)(1) in turn provides that:

relevant. All references to the names of individuals who may have participated in interviews shall be deleted.
( c) Items 6-8. Items 6 and 7 are possibly relevant to the A V A process. Documents covered under item 8 may
be relevant in that the Plaintiff alleges that the A V A

Parties (* 1 6) may obtain discovery regarding any mat-

ter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the
claim or defense of the part seeking discovery or to the

PRATT's employees rejection of an early retirement plan offered in 1986 and
process was instituted as a result of

1987.

claim or defense of any other part. . . . It is not ground for objection that the information sought wil be inadmissible at the trial if the information sought appears

(d) Item 11. This request is may be relevant to the Plaintiffs allegations that PRATT was replacing older
workers with younger workers.

reasonably calculated to lead to the discovery of admis-

sible evidence.

(HNI4) With respect to the issue of "relevancy" of discovery, discovery rules "are to be accorded a broad and liberal treatment." Hickman v. Taylor, 329 US. 495, 507-08 (1947). Writing for a unanimous Supreme Cour, Justice Powell in Oppenheimer Fund, Inc. v. Sanders,
437 Us. 340, 351 (1978) discussed the context of relevancy in Rule 26(b):

ployed at PRATT's West Palm Beach location and
documents related to the West Palm Beach location.

( e) Items 12-14, but limited to those individuals em-

(t) Items 15-18. Budget and financial projections of this nature could be potentially relevant with respect the
motive behind instituing the A V A process. They shall

be limited to PRATT's West Palm Beach Facility.

(HNI5) The key phrase in this defintion--"relevant to the subject
matter in the pending action"- has been constred

(g) Item 19, 20, 22 and 23, are limited to those individuals who have opted into the class.
CONFIDENTIALITY AND FUTURE DISCOVERY PROBLEMS

broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on,
any issue that is or may be in the case. Consistently with

the notice pleading system established by the Rules, discovery is not limited to (* 1 7) issues raised by the plead-

Any information derived from these materials shall be limited to use by the parties in the present suit. Upon termnation of the instant (*19) litigation, all copies of
documents are to be retued to the Defendant. If there are objections as to a specific record or document, in that

ings, for discovery itself is designed to help define and clarify the issues. Nor is discovery limited to the merits of a case, for a variety of fact-oriented issues may arise
during litigation that are not related to the merits.
(citations omitted).

it may be confidential or covered by the attorney-client
privilege, the parties are directed to meet at a mutually convenient time and place in an attempt to resolve any
difficulties before again seeking judicial intervention.

Additionally, the cour invites KAAS and PRATT to set
fort a mutually agreed to discovery schedule and/or
additional guidelines.

In light of these standards, the cour is of the opinion that some of the documents and records that the Plaintiff
seeks may possibly lead to the discovery of admissible

evidence. On the other hand, some of the requests, are
covered by the court's discovery guidelines, or may be
irrelevant to the instant litigation. Consequently, the

The court wil defer ruling on the Plaintiffs request
for sanctions as a result of PRATT's possible bad faith in

compliance with discovery-requests. If, however, it is

Case 1:03-cv-02485-MSK-PAC

Document 380-6

Filed 03/29/2006

Page 9 of 9
Page 8

1991 U.S. Dist. LEXIS 11 177, *

determned that futue discovery disputes were engen-

undertaken by Pratt & Whitney in connection with the
Activity Value Analysis.

dered before the undersigned as the result of recalcitrant parties, who have made less than "good faith" efforts to resolve differences, sanctions shall be imposed.
MOTION TO STRIKE

Upon completion of discovery, either part may challenge the joinder of any individual as to whether they are in fact "similarly situated."

In its Motion to Strike (DE 46) the Defendant asks the court to strike the Plaintiffs demand that PRATT "be permnently enjoined from violating the rights of KAS and similarly situated class members." PRATT contends that the Plaintiff is improperly seeking a general injunction which (*20) orders it to obey the law.
To the contrary, this Circuit has approved of granting injunctions against future violations of the ADEA,

(2) The Defendant shall provide the Plaintiff with his complete personnel fie, as well as the complete personnel files of all individuals who have opted into this
action.
(3) The Defendant shall give the Plaintiff

(a) the hir-

ing date; (b) the termination date; (c) the age at termnation and/or hiing; (d) the salary at hiring and/or terma-

tion; (e) educational background; (t) experience; and (g)

following a finding of discrimination. See, Hodgson v.
First Federal Savs & Loan Ass'n, 455 F.2d 818 (5th Cir.

1972). (HNI6) Once a verdict has been rendered in favor

of a ADEA Plaintiff, 29 Us.c. § 626(b) authorizes the district court to grant "such legal or equitable relief as
may by appropriate to effectuate the puroses of' the

the position and/or job description hired for or termnated from, of all employees at their West Palm Beach facility, who were either hired or fired from the date the institution of the AVA process until August 17, 1990.
The names of these employees are not to be disclosed.

Act. Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1561 (11th Cir. 1988). The selection of relief orremedies is a matter of the trial court's discretion, so long as the relief granted is consistent with the puroses of the ADEA. Id. at 1561. Accordingly, the Defendant's Motion to Strike (DE 46) is DENIED.

(4) The Plaintiffs Motion to Compel Better Responses to Plaintiffs' First Request for Production (DE
54) is GRANTED IN PART, DENIED IN PART PRATT

(*22) shall provide KAS with the documents and records in requests 1,3,4, 5(e), 5(t), 6-8, 11-20,22 and 23, subject to the limitations set forth above.

the foregoing, it is hereby ORDERED and ADJUDGED that
It view of

Memorandum in Opposition to Plaintiffs Motion for Enlargement of Time Regarding Evans and Diaz (DE
105) is DENIED.

(5) The Defendant's Motion for Reconsideration and

(1) the following class is hereby conditionally certified:

Any and all employees who were at any time from August 1988 to August 17,1990:
(a) 40 years old or older;

(6) The Plaintiffs Motion for Protective Order at to Opt-In Class Interrogatories and Request for Production (DE 78) (DE 78) and Motion for Protective Order as to Takig Depositions (DE 87) are DENIED. The Plaintiff shall respond to the Defendant's discovery request within
thi (30) days of the date of this order. The Defendant

(b) employed by Pratt & Whitney's West Palm Beach
facility;

may renotice the taking of depositions thirt (30) days
after it provides the Plaintiff with requested discovery.

(7) The Defendant's Motion to Strike (DE 46) is
(c) involuntarily discharged, laid off or termnated from
employment (*21) by Pratt & Whitney;
(d) subjected to such adverse employment actions as

DENIED.

(8) The Defendant's Motion for Scheduling Order is
DENIED.

described in (c) in connection with the staff reduction

DONE and ORDERED at West Palm Beach, Florida
this 18th day of

March, 1991.