"Me Too" Evidence in Employment Litigation: Pursuing Admission or Exclusion of Propensity Evidence

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, May 15, 2019

Recorded event now available

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Program Materials

This CLE webinar will guide employment litigators on pursuing or challenging the admission of "me too" evidence in discrimination, retaliation or harassment cases. Our panel of experienced employment litigators will discuss the factors courts take into account when ruling on the admissibility of "me too" evidence and share their perspectives and approaches to drafting pleadings, conducting discovery, arguing motions and trying cases in which "me too" evidence is critical to the outcome of the case.


Employees in discrimination, retaliation and harassment litigation often seek to use "me too" evidence to bolster or support an inference that discrimination, harassment or retaliation occurred. Conversely, employers use "me too" evidence to disprove such an inference. This evidence is usually in the form of testimony by non-parties in the case describing their personal experiences with the employer.

The admissibility of "me too" evidence is subject to analysis under Federal Rules of Evidence 401, 403 and 404. The trial court has broad discretion in deciding whether to admit or exclude evidence, taking into account a number of factors related to the relevance of the evidence, the burden on the opposing party of responding to "me too" allegations, and potential for juror confusion.

Employment counsel intending to introduce "me too" evidence must develop their trial strategy with this intention in mind, from the drafting of the initial or responsive pleading through their closing argument. Counsel seeking to exclude "me too" evidence should strategically use discovery, motions in limine and trial objections to block its admission.

Listen as our authoritative panel of employment litigators discusses best practices for dealing with "me too" evidence in employment discrimination, retaliation and harassment lawsuits.



  1. Applicability of Federal Rules of Evidence 401, 403 and 404 to "me too" evidence
  2. Factors courts consider in determining admissibility of "me too" evidence
  3. Strategies for pursuing admissibility of "me too" evidence
  4. Strategies for pursuing exclusion of "me too" evidence


The panel will review these and other key issues:

  • What factors does the trial court consider when determining whether to admit or exclude "me too" evidence?
  • What are some considerations and best practices for counsel pursuing the admissibility of "me too" evidence?
  • What are some considerations and best practices for counsel opposing the admissibility of "me too" evidence?


Garcia, David
David Augustus Garcia

Of Counsel
Ogletree Deakins Nash Smoak & Stewart

Mr. Garcia has represented many Fortune 500 companies in complex employment matters. He has experience defending...  |  Read More

Jackson, Marcus
Marcus Jackson

Marcus Jackson, Attorney at Law

Since 2002 Mr. Jackson has devoted his career to representing employees whose rights have been violated in the...  |  Read More

Liburt, Joseph
Joseph C. Liburt

Orrick Herrington & Sutcliffe

Mr. Liburt has extensive litigation experience successfully defending claims of discrimination, harassment,...  |  Read More

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