It All Comes Down to the Evidence: More on Reid v. Google

Author(s): Richard Levine
Synopsis: Both Google and Mr. Reid now face what is certain to be a very expensive - and lengthy - battle over an arcane evidentiary issue that they did not create. Rick Levine explains how we got here.

You remember Reid v. Google, Inc. Mr. Reid had been hired in 2002 at age 52. His only written performance review was very positive, though it noted that “adapting to the Google culture” was his primary task, pointing out Google’s cultural distinctiveness in terms of “younger contributors, inexperienced first line managers, and [a] super fast pace.” Two years after being hired, Mr. Reid was moved into an allegedly dead-end job and then terminated. During his brief tenure, he claimed to have been subjected to a barrage of age-related disparagement (“obsolete,” “too old to matter,” “lethargic,” no “sense of urgency,” “ancient knowledge,” “old man,” “old guy,” “fuddy-duddy”) and excluded from the “youthful atmosphere” of the company. Upon being terminated, Reid was told he was not a “cultural fit,” and that the dead-end position was being “eliminated.”

The trial granted summary judgment in Google’s favor, finding the issue in the case to be whether Reid could prove that Google was lying about eliminating the dead-end job, rather than whether Reid could make a prima facie case that the dead-end job was just part of a pretext and that he was terminated because he was too old to fit in. The Court of Appeal reversed the trial court’s decision and sent the case back down. That’s where we were when we last visited this case.

Google’s lawyers have now put the case before the California Supreme Court on an evidentiary issue of great interest to litigators but little interest to anyone else. During the trial court summary judgment proceedings, Google’s lawyers had objected to much of Mr. Reid’s evidence of “ageist” comments. The trial judge did not expressly rule on those objections, but simply recited, in his summary judgment ruling, that he had relied only upon competent and admissible evidence. In so doing, the trial court followed a procedure established by the Court of Appeal in 1990 in Biljac Association v. First Interstate Bank, 218 Cal.App.3d 1410. That case permits a trial court to forego written rulings on objections in summary judgment proceedings, and simply presumes that the court has not relied upon bad evidence. Google’s problem (and the problem of many lawyers since Biljac was decided), is another line of decisions holding that an objection not expressly ruled on by the trial court is deemed “waived.” (There are other decisions going the other way; i.e., holding that such objections are preserved.) Google is concerned that, at some point, it could be held to have waived its objections to Reid’s evidence, which Google apparently believes could make a big difference in the case. The California Supreme Court seems to have chosen Mr. Reid’s case as a vehicle to clarify the uncertainty created by Biljac.

Both Google and Mr. Reid now face what is certain to be a very expensive – and lengthy – battle over an arcane evidentiary issue that they did not create. Mr. Reid, by the way, was terminated in 2004 when he was 54. One wonders how old he will be when this case is finally resolved.

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