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
What Documents and Information Must Be
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
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:
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:
The defendant must provide the same information required
of the plaintiff, as well as the identity of:
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:
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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