Frazier v. Morgan Stanley & Co, LLC

Background

Kathy Frazier, Yared Abraham, and O. Emmanuel Adepoju-Grace were the remaining plaintiffs in an employment-discrimination case against Morgan Stanley & Co., LLC, Morgan Stanley Smith Barney LLC, and Morgan Stanley. The plaintiffs alleged disparate-treatment and disparate-impact discrimination under Section 1981 and Title VII. In 2018, the court dismissed all claims except the plaintiffs’ individual disparate-treatment claims under Section 1981.

The order addressed several discovery disputes. Plaintiffs sought their complete employment-period email boxes and additional email searches. They also moved to compel nationwide studies, reports, and other materials about Morgan Stanley’s teaming, account-distribution, training, affirmative-action, and related policies. Morgan Stanley sought a protective order concerning subpoenas served on former diversity monitors Cathy Pepe and Fred Alvarez and Alvarez’s former law firm. The plaintiffs also planned to serve a subpoena on Marilyn Booker, a former Morgan Stanley diversity and urban-markets executive.

Email Discovery

The court denied Plaintiffs’ request for additional emails, including new search-term searches and production of their entire email boxes. The court found that the requests were overly burdensome and not proportional to the remaining issues. The parties had already negotiated an electronic-discovery process using search terms, and Plaintiffs did not explain why additional terms or custodians would produce relevant material or provide evidence that most of the hundreds of thousands of emails would be relevant.

Nationwide Materials

The court held that Plaintiffs’ broad requests for nationwide studies and reports were largely irrelevant or disproportionate to their remaining individual disparate-treatment claims, which concerned alleged discrimination by individuals in Plaintiffs’ offices. The court therefore denied Plaintiffs’ motion to compel broader nationwide discovery.

The court nevertheless directed Morgan Stanley, to the extent it had not already done so, to produce company-wide policies and guidance that applied to teaming, account distribution, affirmative action, and financial-advisor training or retention at Plaintiffs’ local offices between June 1, 2009, and November 30, 2013. The court found those policies and guidance relevant because supervisors’ application or departure from them could help show whether Plaintiffs were treated differently from similarly situated employees.

Diversity-Monitor Subpoenas

The court denied Morgan Stanley’s motion for a protective order because Morgan Stanley did not assert a personal right or privilege giving it standing to challenge the non-party subpoenas. Standing, in this context, means a sufficient legal interest to ask the court to block or limit the subpoenas.

Even without standing, the court exercised its authority to limit discovery that was duplicative, could be obtained more conveniently elsewhere, or fell outside the proper scope of discovery. The court recognized that the former diversity monitors might possess relevant materials Morgan Stanley did not have, including their own notes and analyses concerning Plaintiffs’ complaints.

The court imposed on the diversity-monitor subpoenas the same limits it applied to Plaintiffs’ nationwide requests. The subpoenaed non-parties were required to produce only materials directly related to the individual Plaintiffs or their local offices concerning teaming, account distribution, affirmative action, and financial-advisor training and retention decisions made, or policies or guidance applied, in those offices between June 1, 2009, and November 23, 2013.

The court ordered that the same limits apply to the planned Booker subpoena. Plaintiffs were directed to modify that subpoena before serving it so that it sought only the specified materials relating to the individual Plaintiffs or the listed subjects and their offices during the stated period.

Disposition

The order states that Plaintiffs’ motion to compel discovery was granted in part and denied in part. Morgan Stanley’s motion for a protective order was denied. The court also denied the parties’ joint request for a pre-motion conference, while allowing them to request another conference by joint letter if they later determined one was necessary. The parties were ordered to confer and submit a revised case-management plan, and the clerk was directed to terminate the listed pending motions.