A major US law firm’s report into gender and pay disparities by a client is likely to be subpoenaed, raising issues around lawyer-client privilege and pulling the law firm itself into the courtroom.
Six years before the biggest sex discrimination case in US history was filed against Wal-Mart Stores, the company hired major law firm Akin Gump Strauss Hauer & Feld to examine its vulnerability.
The role of that law firm, and its 1995 report suggesting women employed by the client earned less than men in numerous job categories, is now under review by media, and a class action filed on behalf of the women who worked at the company.
The New York Times reports on the early role of Akin Gump Strauss Hauer & Feld in a major sex discrimination lawsuit against Wal-Mart Stores. The lawyers warned the company that it would be difficult to defend its practices in the 1995 report.
Without significant changes, the lawyers said in their confidential analysis, Wal-Mart “would find it difficult to fashion a persuasive explanation for disproportionate employment patterns”.
While Wal-Mart has denied any systematic discrimination, wanting the claims against it to be tried individually rather than a class action potentially sweeping in more than a million current and former employees, the lower court have ruled the case can proceed as a class action.
Wal-Mart now plans to ask the country's Supreme Court to overturn the class certification.
Akin Gump’s report is now being dragged into the spotlight. While outside legal experts say the report is likely to be protected by lawyer-client privilege, Brad Seligman, the lead lawyer for the omen suing Wal-Mart says he intends to subpoena the report, which he had previously not known about.
Wal-Mart, meanwhile, labels Akin Gump’s port “stale” and “deeply flawed”. The confidential and privileges report was made available to The New York Times by someone not involved in the lawsuit, who claimed Wal-Mart had not done enough to address the issues the report had raised.
Akin Gump estimated that for 1993 alone, Wal-Mart’s potential legal exposure in a class-action sex discrimination suit was $185 million to $740 million. Seligman said the women suing Wal-Mart were seeking damages for every year since 1997, meaning the company could be on the hook for billions of dollars.
Wal-Mart, meanwhile, criticised Akin Gump’s methodology, arguing it had mimicked the statistical analysis done by plaintiffs’ lawyers in class-action cases.