Discovery in Employment Discrimination Litigation: What Defendants Can Request and Obtain from Plaintiffs

By: Jamala S. McFadden, Chandra C. Davis, and Raquel H. Crump, The Employment Law Solution: McFadden Davis, LLC

This article provides guidance on the scope of permissible discovery employers may obtain from plaintiffs in employment discrimination lawsuits under statutes including Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA). Additionally, this article discusses a list of commonly disputed discovery issues stemming from employer discovery requests and effective responses to common objections.

Amendments to Rule 26 of the Federal Rules of Civil Procedure

The 2015 amendments to the Federal Rules of Civil Procedure changed the scope of discovery available in employment discrimination cases. The amendments to Rule 26 deleted the former provision for the discovery of relevant but inadmissible information because some used the phrase “reasonably calculated to lead to the discovery of admissible evidence” incorrectly, to define the scope of discovery.

Under the revised rule, information is discoverable if it is relevant to any party’s claim or defense and is proportional to the needs of the case.¹ The amendments are described as a restoration of the proportionality calculation. Thus, courts are now narrowing the scope of what once was very broad discovery. Attorneys should be familiar with Rule 26 when drafting, responding to, or seeking court intervention concerning discovery requests.

Rule 26(b)(1) defines the scope of discovery as follows:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Information within this defined scope does not need to be admissible in evidence to be discoverable. In applying the proportionality factors of Rule 26(b)(1), the courts have, in some cases, found the majority of documents sought to be of minimal importance in resolving the issues in the action and the documents to be accessible through public information sources available to the employee.

Limitations to the Scope of Discovery

As a result of the amendments, courts are handling discovery in employment discrimination cases differently than before. Rule 26 encourages courts to be more “aggressive in identifying and discouraging discovery overuse” by emphasizing the need to analyze proportionality before ordering the production of relevant information. Thus, courts are limiting the scope of discovery to information that is relevant to the specific claims and defenses of the parties (e.g., what happened to the plaintiff in the specific situation at issue) and proportional to the case’s needs.

Courts can limit the extent of discovery if:

1. The discovery sought is unreasonably cumulative or duplicative or can be obtained from another source that is more convenient, less burdensome, or less expensive
2. The party seeking discovery has had many opportunities to obtain the information by discovery –or–
3. The proposed discovery is outside the permitted scope under Rule 26(b)(1)²

Rule 26 also places limitations on the production of electronically stored information (ESI), such as social media content, emails, text messages, and other electronic information. Parties may specify the form in which ESI is produced. Parties may object to providing ESI if doing so would impose an undue burden or cost on the producing party because the information is not reasonably accessible. However, a court may still order a party that makes this objection to produce the information sought if the requesting party shows good cause, considering the limits of Rule 26(b)(2)(C).

Discovery Employers Seek from Plaintiffs

The prior broad scope of discovery in employment discrimination cases allowed for wide-ranging requests concerning information like similar misconduct and complaints by other employees, and performance issues and personnel files from prior employers. Each discovery request is now subject to examination under the amended Rule 26(b)(1) and its proportionality factors, which generally result in a narrower scope of discovery than before.

You should draft discovery requests with the aim of uncovering information about the employee’s case, including potential witnesses, individuals with knowledge, background, documents, and other evidence that supports the employee’s claims and possible damages. Traditional discovery requests to employees include prior and subsequent employee records of the employee, tax returns, diaries, logs, medical records, and communications between the employee and current or former employees of the employer where the underlying circumstances of the case are discussed. The new limitation of Rule 26(b)(1) should not hinder you from continuing to request this kind of information, but you should be prepared to make a heightened showing that you need it (e.g., the information is relevant to the subject matter of the case, it is not readily available elsewhere, it concerns the conduct complained of, etc.).When drafting and serving interrogatories, document production requests, admissions, authorizations, and FOIA requests, focus on:

• Justifying the burden for any discovery that goes beyond the direct circumstances of the alleged wrongful conduct
• The damages claimed by the employee –and–
• Any defenses

Make sure to include the following types of information in your requests unless they are not relevant to your particular case.

Employment Records and History

A plaintiff’s employment records from previous employers allow an employer to obtain similar complaints the employee has made or filed against other employers, dates of employment and income for calculation of damages, and a pattern of the employee’s poor performance or misconduct.

Tax Records

An employee’s income is relevant for the purposes of damages and mitigation. An employee’s claims for back pay or front pay may be limited by later employment, other sources of income, or failure to obtain new employment. Tax records are the most accurate and complete sources of an individual’s income; however, a plaintiff may be reluctant to produce this information because it contains personal information they find irrelevant to the case and their claim for damages.

Diaries and Journals

An employer’s request for personal diaries and journals is to obtain evidence (or the lack thereof) of emotional distress and/ or physical damages and any reference to or description of the allegations in the complaint. Diaries and journals can exist in hard-copy books, electronic formats (on computers, tablets, smartphones, etc.), or audio/video recordings.

Medical Records

Employers seek a plaintiff’s medical records for claims of emotional distress, physical damages, or disability. This type of information (e.g., healthcare records or medical information about the employee) may require a release of information signed by the employee to accompany the document request. This is particularly true when the plaintiff does not have a copy of his or her medical records; in such a case, the only source of the records would be an institution such as a hospital, which is not otherwise authorized to release patient records to third parties.

Plaintiffs must sign a medical release form that authorizes an institution to release protected information. Note that a medical release is the only kind of release an employer may compel a plaintiff to sign. However, not all courts will order a plaintiff to sign a release. If the plaintiff does sign a release, you may use it to request the information directly from the institution or third party, rather than requesting it from the plaintiff or their counsel.

Emails, Texts, and Other Electronic Communications

Employers often seek electronic communications between the employee and other individuals regarding the allegations in the complaint and/or between the employee and any individual he or she claims subjected the employee to discrimination or harassment.

Prepare for objections from the plaintiff alleging the requests are overbroad or that all relevant communications have been provided, for example. Additionally, prepare for disputes concerning the format and manner in which the electronic communications should be produced. To aid in preventing and responding to objections from the plaintiff, consider limiting the request in time and scope. For example, request the production of emails or text messages only if they are:

• Between plaintiff and a current and/or former employee of defendant
• Written during the pertinent time period –and–
• In relation to the plaintiff’s alleged emotional or mental state

Social Media Accounts

Employers often request records from an employee’s social media accounts, such as Twitter, Facebook, Google+, Snapchat, YouTube, etc. These requests are for reasons similar to why employers seek diaries and journals. The purpose is to obtain information about the employee’s emotional and psychological state (for claims of emotional distress damages), physical state (for claims of physical damages or disability), any reference to or description of the allegations in the complaint, and mitigation of damages.

Because social media is a relatively new area of discovery for employment discrimination cases, courts are still determining the scope of content employers can obtain from employees.

The social media information that employers seek can include profile information, photographs, postings, messages, tweets, videos, etc. Remember to use the proportionality factors of Rule 26 to determine if the plaintiff’s social media information is discoverable.

As previously stated, parties may specify the form in which the opposing party should produce ESI, including social media information. However, this is often a point of dispute between the parties. Examples of methods of production include requesting the employee’s username and password, a download of social media data, or authorizations for the release of records from the social media accounts to subpoena the social media platform organizations.

Other Litigation

Other legal proceedings can yield information concerning the employee’s mental and/or physical state or employability, show that the employee has a history of filing lawsuits or filed similar lawsuits alleging the same facts or claims against a different employer, reveal statements the employee made about his or her employment with the employer, or confirm wages earned.

Best Practice Tips and Considerations for Successful Discovery Requests

Start with What Your Client Has

When defending employers, obtain as much factual information as early in the dispute as possible from your own client. Engaging in this process early on can pay off, particularly if the court limits the scope of discovery later in the case.

Gather Documents

Obtain from your client the employee’s personnel file and other documents related to employee performance, attendance, and disciplinary action; the company handbook; and information and documents about similarly-situated employees. This material will help you identify evidence of legitimate, nonpretextual reasons for adverse employment actions.

Engage in an Informal Discovery Process

Conduct informal witness interviews. The notes you take during the interviews are work product and generally not discoverable.

Conduct Background Checks

Search civil and criminal records to determine if the employee or members of his or her family have been involved with other litigation or issues that affect the employee’s claims.

Conduct Internet Searches

You can obtain information about the plaintiff and witnesses at no or minimal cost through internet searches using search engines, social media platforms, and other similar websites. Additionally, LexisNexis can be a useful tool in obtaining information quickly and efficiently.

Formal Discovery

Scope of Discovery

Remember the requirements for permissible discovery:

• The matter must not be privileged
• The matter must be relevant to any party’s claim or defense
• Information need not be admissible in evidence to be discoverable
• The matter must be proportional to the needs of the case

For the last requirement—proportionality—consider the proportionality factors:

• How important are the issues at stake in the action?
• How much is the amount in controversy?
• What is the parties’ relative access to relevant information?
• What are the parties’ resources?
• How important is discovery in resolving the issues?
• What is the burden/expense of the proposed discovery, and does this outweigh its likely benefit?

If the considerations and answers to the questions align in favor of the discovery, the request is more likely to be granted, even if objected to. If they don’t, apply these requirements to tailor the request to the issues of the case.

Privileged Information

If the plaintiff objects that information you request is privileged, examine whether you can use either of these two approaches to overcome the objection:

• Waived privilege. If the plaintiff has already produced the documents in the current action or another case, or has produced the documents to the government, you can argue that the plaintiff has waived any privilege or protection and thus compel discovery.
• Showing need. Rule 26(b)(3)(A)(ii) permits discovery of even privileged information if a party can show a “substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.”

Document Requests

You can ask the plaintiff to provide documents to you. The process for requesting production is governed by Rule 34.

Scope of Document Requests

Keep the following in mind when deciding on the breadth of each document request.

• Describe each document or type of document that you seek with “reasonable particularity” (i.e., strike a balance between being too specific so that many relevant documents fall outside of the scope of the request, and being so broad that the other party could raise an objection).³
• Identify the time period from which you seek the documents (it often begins three years before the alleged discrimination). Ensure the time range is not so narrow that it fails to cover relevant documents. On the other hand, don’t make the requested time frame too long because it can be subject to objection.
• When you plan to inspect the other party’s documents, specify a reasonable meeting place and time for opposing counsel and/or the plaintiff to meet with you. Note that the opposing party may choose to produce copies of the information instead of allowing you to inspect the originals at an agreed-upon meeting.
• Remember, just because a document is discoverable does not make it admissible as evidence in a trial.

Spoliation and ESI

If you believe the plaintiff has destroyed or altered discoverable ESI or other information (i.e., has committed spoliation), move for sanctions. Courts can sanction plaintiffs by fining them, holding them in contempt, striking or dismissing pleadings or claims, or prohibiting the introduction of certain evidence.

Objections

Below are examples of the objections employers can expect to receive on various types of material, and methods to avoid them. Strive to make your discovery requests proof against these objections or grounds for denial of your motions to compel information.

Objections to Employment Records or History

Plaintiffs commonly make the following objections to requests for records and other documents related to their employment history:

• The requested information is not relevant and/or is unduly burdensome.
• The plaintiff has already supplied the information or equivalent material. The new request would in effect impose a cost on the plaintiff to produce unnecessary duplicates.
• The request is too broad. (Stay away from overly broad terms in the request, such as all, every, or each.)
  • Subpoenas seeking “any and all employment records” without limitation, or a plaintiff’s entire personnel file from a previous or later employer, are deemed overbroad and will be quashed.⁴
• The information requested improperly infringes on plaintiff’s privacy.
  • Courts recognize an individual’s legitimate privacy interest with respect to subsequent employment.⁵
• The request is too vague. This is similar to the “too broad” objection, and also requires that you be more specific in your definition of the item or document that you want.

Employers can limit or specify their requests for employment records or history to the following to avoid objections from plaintiffs:

• Employment records, such as payroll documents, showing dates, positions, and/or rates of pay to demonstrate the extent to which the plaintiff mitigated damages
• Grievances, complaints, charges, lawsuits, etc., that the plaintiff filed during prior employment to show patterns, habits, and credibility –and–
• Documents constituting or showing performance reviews, discipline, job responsibilities, time and attendance, and/or reasons for termination to demonstrate qualifications and job performance

Objections to Requests for Social Media Activity

Plaintiffs commonly make the following objections to requests related to their social media activity:

• The requested information is not relevant and/or unduly burdensome.
• The request is too vague. This is similar to the “too broad” objection, and also requires that you be more specific in your definition of the item or document that you want.
• The information requested improperly infringes on plaintiff’s privacy.
• The purpose of the request is to harass, embarrass, harm, impede, or needlessly impose a cost or burden on the plaintiff.

Plaintiff’s social media activity can be relevant to the factual allegations in the complaint, claims of damages, emotional distress, and disability; you just need to limit requests to that scope. For example, limit requests to the social media activity relevant to the factual allegations in the complaint by seeking production of activity that relates to the plaintiff’s work performance (to the extent social media was used during work hours), words or conduct the plaintiff finds unacceptable or offensive, and/or communications between the plaintiff and the coworker or supervisor who committed the alleged harassment and/or discrimination.

Emails, Texts, and Other Electronic Communications

Plaintiffs commonly make the following objections to requests for their electronic communications:

• The plaintiff has already supplied the information or equivalent material. The new request would in effect impose a cost on the plaintiff to produce unnecessary duplicates.
• The request is too broad. (Stay away from overly broad terms in the request, such as all, every, or each.)
• The parties cannot agree on the manner and/or method of production.

Employers can prevent, or at least undermine, these objections from plaintiffs by limiting requests for electronic communications in time and scope. Limiting requests to communications that took place during relevant time periods, that were between current and former employees, and that relate to allegations in the complaint (such as mental states the employer’s wrongdoing caused), can result in an order for production.⁶

Medical Records

Plaintiffs’ objections to requests for medical records tend to include the following:

• The requested information is not relevant and/or unduly burdensome.
• The information requested improperly infringes on plaintiff’s privacy.
• The purpose of the request is to harass, embarrass, harm, impede, or needlessly impose a cost or burden on the plaintiff.

To avoid or prevail over objections, limit your requests for medical records to those related to the factual allegations in the complaint and to damages. Courts routinely require production of medical records that are limited in time and in scope to plaintiff’s alleged disability or mental state.

Tax Records

Plaintiffs facing requests for their tax records often make the following objections:

• The requested information is not relevant.
• The information requested improperly infringes on the plaintiff’s privacy.
• The employer has readily available other means to obtain documents or information without resorting to discovery.

As indicated above, tax records are relevant to the plaintiff’s damages and mitigation of damages. Depending upon the jurisdiction, employers may need to show that the requested tax records are relevant to the litigation and contain information that is not readily available by other means of discovery. In the U.S. Court of Appeals for the Eighth Circuit, for example, courts use a two-prong test to determine the discoverability of tax returns. The court first considers whether the tax return is relevant to the subject matter of the action. If it is, the court then considers whether a compelling need for the tax records exists since the information the employer seeks is not readily available from other sources. The party requesting the tax returns has the burden of establishing relevance and the resisting party has the burden to identify the other source of the information sought.⁷ In the U.S. Court of Appeals for the Sixth Circuit, however, tax returns “enjoy no special privilege from disclosure.”⁸

Diaries and Journals

Plaintiffs tend to object vigorously to requests for their personal diaries and journals, usually on the following grounds:

• The purpose of the request is to harass, embarrass, or harm the plaintiff.
• The employer has readily available other means to obtain documents or information without resorting to discovery.

Plaintiffs are reluctant to produce journals and diaries because they may contain private and embarrassing material. While this may be true, courts still find diaries discoverable when they contain relevant information concerning a plaintiff’s mental state, the conduct complained of, or the plaintiff’s relationship with the alleged harasser or discriminator. Employers seeking a plaintiff’s diaries or journals should err on the side of caution by making specific and limited requests.

Object to Objections

Beware of plaintiffs who refuse production and object only that the request is overly broad or unduly burdensome. This is one example of vague objections, which are a sign that the objecting attorney is just trying to cover his or her bases and does not have a well-founded objection.

Vagueness also runs into problems under Rule 34, which now requires parties to make objections with specificity. Thus, an objection that a request is “unduly burdensome” or “vague and ambiguous” without more may not be acceptable. In certain circumstances, it may be necessary to identify the specific part of the request that is “vague and ambiguous” or “unduly burdensome.”

Do not let a vague objection pass unremarked—require opposing counsel to be specific. For example:

• Objection: already supplied
• Response: have the plaintiff identify where the information has already been supplied
• Objection: too broad
• Response: the plaintiff has failed to identify specifically what about the request is too broad
• Objection: too vague
• Response: the plaintiff has failed to identify specifically what about the request is too vague.

Jamala S. McFadden is a co-founding partner of The Employment Law Solution: McFadden Davis, LLC. Her practice focuses on all aspects of employment law, including advice and counseling, representation in litigation and agency matters, and corporate transactions. She has advised more than 100 small-to-midsize to Fortune 100 organizations in varied industries. McFadden conducts internal investigations and has trained more than 1,000 management and staff employees on harassment and discrimination policies. Additionally, she drafts workforce-related agreements, policies, and handbooks and assists executives in employment contract matters, including negotiating severance agreements. Chandra C. Davis is a co-founding partner of The Employment Law Solution and has been practicing employment law for over 14 years. She has extensive experience as a management side lawyer and as a Trial Attorney for the EEOC. At the EEOC, Chandra served as first chair in over 25 litigation matters and managed investigative files for over 250 charges for the purpose of recommending the initiation of litigation in connection with various civil actions. She has also developed training programs for the EEOC and multi-national corporations. Raquel H. Crump focuses her practice on advice and counseling, litigation and agency matters, trainings, employment policies, and agreements. Her experience with a large retailer gives The Employment Law Solution insight into how to resolve employment challenges in the industry.

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Related Content

1. Fed. R. Civ. P. 26(b)(1). 2. Fed. R. Civ. P. 26(b)(2)(C). 3. See Fed. R. Civ. P. 34(b)(1)(A). 4. See Pacheco v. Borden Dairy Co. of Fla., LLC, 2014 U.S. Dist. LEXIS 66293, at *2–3 (M.D. Fla. May 2, 2014) (agreeing with the plaintiff’s argument that the subpoenas “served on Plaintiff’s prior employers seeking…[a]ll records pertaining to employment and job placement of [Plaintiff] including applications, work history, personnel file, discipline records, employment contracts/agreements, documents relating to absences/leaves, attendance, [and] performance” were “overly broad [and] not reasonably calculated to lead to the discovery of admissible evidence”); see also Singletary v. Sterling Transport Co., Inc., 289 F.R.D. 237, 242–44 (E.D. Va. 2012) (quashing subpoenas to plaintiff’s prior employers and finding subpoenas “overbroad on their face” in seeking “the complete personnel file of plaintiff”) and EEOC v. Evening Entertainment Group, LLC, 2012 U.S. Dist. LEXIS 85310, at *1 (D. Ariz. June 20, 2012) (“Defendant’s blanket requests for all personnel records from three former employers are overbroad on their face and amount to a fishing expedition.”). 5. See EEOC v. Princeton Healthcare Sys., 2012 U.S. Dist. LEXIS 65115, at *1 (D.N.J. May 9, 2012); see also Tinio v. St. Joseph’s Reg’l Med. Ctr., 2014 U.S. Dist. LEXIS 92565, at *4 (D.N.J. July 7, 2014) (“Courts . . . have precluded production of current employment records because ‘individuals have a legitimate privacy interest in information regarding [their] subsequent employment’”). 6. See Robinson v. Jones Lang LaSalle Ams., Inc., 2012 U.S. Dist. LEXIS 123883 (D. Or. Aug. 29, 2012). 7. See Johnson v. MERS-Goodwill, 2014 U.S. Dist. LEXIS 173847, at *2–3 (E.D. Mo. Dec. 17, 2014.) 8. EEOC v. SCI Tenn. Funeral Servs., 2006 U.S. Dist. LEXIS 97441, at *8 (W.D. Tenn. June 30, 2006).