Initial Discovery Protocols for Employment-Discrimination Cases

The exchange of initial disclosures between parties in a lawsuit brought in federal court is not generally considered the most useful endeavor. The parties have to exchange a few pieces of information but, for the most part, expect to get into the substance of the case only after formal discovery has begun in earnest.

Some practitioners and scholars believe that this early period of initial discovery is a time that could be better spent through the mandatory exchange of more meaningful information. To that end, the Federal Judicial Center has released its Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action.

What are the Protocols?
The purpose of the Protocols is to "encourage parties and their counsel to exchange the most relevant information and documents early in the case, to assist in framing the issues to be resolved and to plan for more efficient and targeted discovery." Judges in federal District Courts will pilot test the Protocols and report back to the Federal Judicial Center.

The Protocols are designed to replace initial disclosures with initial discovery specific to employment cases alleging adverse action. The discovery would be provided automatically by both sides within 30 days of the defendant's responsive pleading or motion.

In Which Cases Would the Protocols Be Used?
The Protocols would be used in all employment-discrimination cases except the following:

  • Failure to hire;
  • Harassment / hostile work environment;
  • FLSA;
  • ADAAA failure to accommodate;
  • FMLA;
  • ERISA; and
  • Class actions

What Documents and Information Must Be Supplied?

Both the plaintiff and the defendant in the case would be required to provide certain documents and information going back three years before the date of the alleged adverse action, unless an earlier period is provided.

Documents to be produced by Plaintiff

The plaintiff-employee would be required to produce to the defendant-employer the following documents and information without waiting for a formal discovery request:

  • All relevant communications between the plaintiff and defendant;
  • "Claims, lawsuits, administrative charges, and complaints by the plaintiff" that rely on any of the same factual allegations or claims at issue in the present lawsuit;
  • All documents concerning the formation and termination of the employment relationship, irrespective of the relevant time period;
  • Documents concerning the terms and conditions of the employment relationship;
  • Diary, journal, and calendar entries maintained by the plaintiff relating to the allegations or claims at issue;
  • Plaintiff's current resume;
  • Documents relating to unemployment benefits that are "in the possession of the plaintiff;"
  • Documents relating to the plaintiff's job-search efforts, including communications with potential employers; offer(s) of employment, job description, and income and benefits information;
  • Documents relating to the termination of any subsequent employment; and
  • Any other documents upon which the plaintiff relies to support his or her claim.

One of the most interesting items on the list is the second-to-last--documents relating to the termination of any job held by the plaintiff after his or her employment with the defendant. This category of document is not one that plaintiffs usually want to turn over, so the Protocols would eliminate any potential dispute about the discoverability. As a safeguard, though, the Protocols do provide that the defendant may not contact or subpoena a prospective or current employer without giving the plaintiff 30 days' notice and an opportunity to file a motion for a protective order or motion to quash.

The plaintiff also must provide the defendant with certain information, including the identity of "persons with knowledge," which also is required under the current standard for initial disclosures. Additionally, the plaintiff must describe the categories of damages claimed and disclose whether he or she has applied for disability and/or social-security disability benefits after the alleged adverse action, whether any such application has been granted and, if so, the nature of the award if any.

Documents to be produced by Defendant
The defendant must produce the same types of documents as the plaintiff, as well as the following additional types of documents:

  • Relevant communications "among or between" the plaintiff's managers, supervisors, and/or the defendant's human-resources personnel;
  • Responses to any claims, lawsuits, administrative charges, and complaints by the plaintiff that are based on the same allegations or claims at issue in the present lawsuit;
  • The plaintiff's complete personnel file (both the official version and any "unofficial" versions maintained by a supervisor), irrespective of the relevant time period;
  • Documents used in making the disputed employment decision;
  • Workplace policies or guidelines relevant to the adverse action;
  • Table of contents and index of any employee handbook or manual in effect at the time of the allegedly adverse action;
  • Job description(s) for the position(s) held by the plaintiff; and
  • Documents showing the plaintiff's compensation and benefits, such as retirement plan benefits, fringe benefits, employee benefit summary plan descriptions, and summaries of compensation.

The defendant must provide the same information required of the plaintiff, as well as the identity of:

  • the plaintiff's supervisor(s) and/or manager(s); and
  • the person(s) who were involved in the adverse decision.

What Does the Model Order Protect?

In addition to the Protocols themselves, there also is a model standing order for use by the implementing judges and a model protective order that counsel and the judge can use as a basis for discussion. The model protective order contains important provisions, including:

  • Counsel may designate documents or information as confidential when necessary "to protect the interests of the client;"
  • Confidential information disclosed will be used only in connection with the case;
  • In the event of a challenge to the confidentiality designation, counsel must make a good-faith effort to resolve the dispute before seeking the court's assistance;
  • Production of confidential document or information does not constitute an admission that the document or information is relevant or admissible;
  • Any document or information may be designated as confidential up to the latter of 14 days after the close of discovery or 14 days after production; and
  • At the conclusion of the litigation, within 30 days after the entry of final judgment, all copies of confidential information must be returned to the producing party or certified as destroyed

Pilot Project Initial Discovery in Employment Discrimination Cases.pdf (PDF)

Read more Labor and Employment Law insights from Margaret (Molly) DiBianca in the Delaware Employment Law Blog.  Ms. DiBianca is an attorney with Young, Conaway, Stargatt & Taylor, LLP.

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