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Southern District of Ohio Denies Access to Affidavit Metadata in Age Discrimination Case

Posted on January 8th, 2016

In Guyton v. Exact Software North America, Case No. 14-502 (S.D. Ohio, Dec. 21, 2015), Plaintiff sued Defendant, her former employer, for age discrimination and sex discrimination. Defendant terminated Plaintiff after what Plaintiff alleges were years of favorable evaluations and promotions without negative incidents. At her termination, Defendant advised her that she was being terminated for cause two months after a favorable performance review. Plaintiff alleged that she spoke to Defendant’s CEO who “implied” that some employees had been around too long, and that he would continue to replace them with younger employees. Defendant then hired a much younger employee to replace Plaintiff. Plaintiff abandoned her gender discrimination claim.

Before filing suit, Plaintiff filed a charge with the EEOC, which issued her a Right to Sue letter. Plaintiff alleged that Defendant made false statements to the EEOC during its investigation. Plaintiff filed a Motion to Compel seeking multiple items, including a broad range of emails regarding the decision to fire her and original electronic versions of the affidavits Defendant sent to the EEOC, with the affidavits’ metadata. Defendant countered that the Motion was based upon speculation.

With regard to the affidavits, the affiants testified in depositions that the affidavits contained untrue statements. One affidavit was signed; the other was not. At the deposition of the affiant who signed her affidavit, her attorney objected to many of the questions as privileged. The court ordered that information about the affiant’s attempt to search for, preserve or review documents were not privileged and compelled Defendant to produce them. However, the court denied the balance of the motion, stating that the crime-fraud exception did not apply and declined to order Defendant to produce the affidavit’s metadata.

ILS – Plaintiff Electronic Discovery Experts

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