In Good Form

Litigating Employment Discrimination Cases.

By Andrew H. Friedman

September/October 2007 issue

Editor’s note: The documents described and boldfaced in this article are available by clicking on the form’s name in the article or by visiting the "Forms" section of our Web site. The forms in this article include:

1. Draft Complaints

   • 5B-1 Americans with Disabilities Act and the Family and Medical Leave Act

   • 5B-2 Age Discrimination and Retaliation

   • 5B-3 Qui Tam Action

   • 5B-4 State Sexual Harassment and Related Actions

   • 5B-5 42 United States Code §1983 Sexual Harassment

2. Four Sample Demand Letters

   • 10A-1 Demand Letter (Sample Form 1)

   • 10A-2 Demand Letter (Long Form)

   • 10A-3 Demand Letter (Short Form 1)

   • 10A-4 Demand Letter (Short Form 2)

3. Cast of Characters 6A

4. Chronology 6B

5. Document Request Propounded by Plaintiff 6J-1

6. Document Request Propounded by Plaintiff 6J-2

7. Request for Production Propounded by Defendant-Employer 6J-3

8. Letter to Plaintiff Regarding Defendant’s Request for Production 6J-4

9. Sample Request for Documents — Electronic Discovery 6J-5

Prior to filing an employment lawsuit, it’s generally a good idea to explore alternative means of dispute resolution, such as mediation or informal settlement discussions. The best vehicle with which to begin ADR discussions is either a demand letter or a draft complaint. Paralegals can be instrumental in drafting these, and the purpose of both the demand letter and the draft complaint is the same: to advise the employer of the employee’s legal claims, and inquire as to whether the employer is interested in engaging in confidential, business-like, prelitigation settlement discussions to resolve the claims.

Although the draft complaint and the demand letter are designed to accomplish the same objectives, there are strategic reasons for choosing one over the other. If there is a clear violation of the law, and you have worked up the case and are ready to file, a draft complaint is preferable because it sends a strong message to the employer. A draft complaint also might be preferable where strategic reasons mandate that you be somewhat vague regarding the precise facts or law of the case.

For example, if the case is dependent on evidence either in the employer’s possession or that the employer might be able to manipulate (e.g., a reluctant witness who could easily be intimidated), a draft complaint is a better vehicle because the evidence would not be disclosed. Similarly, if the case is weak or it would be difficult to demonstrate that the prospective client can satisfy each of the elements of his or her claims, a draft complaint would serve better than a demand letter because it allows the claims to be communicated to the employer in a cursory fashion. See sample Draft Complaints 5B-1 (Americans with Disabilities Act and the Family and Medical Leave Act), 5B-2 (Age Discrimination and Retaliation), 5B-3 (Qui Tam Action), 5B-4 (State Sexual Harassment and Related Actions) and 5B-5 (42 United States Code §1983 Sexual Harassment).

A demand letter, on the other hand, is often better in cases in which the employee can easily establish either: (1) proof of each of the elements necessary to his or her claims, or (2) that he or she has suffered tremendous damages.

A demand letter is also more appropriate if the employee doesn’t yet have a case under the law but was treated in an unfair manner. Occasionally, a cogently written demand letter sent to the president of a company that convincingly explains how poorly the employee was treated might evoke a sympathetic reaction that fairly addresses the employee’s problem.

Whether you use a demand letter or draft complaint, it’s critical that the initial contact with the employer be well-written, thoroughly researched and factually accurate. Employment defense counsel will begin taking the “measure” of plaintiff’s counsel from the first contact. A poorly written demand letter or draft complaint might not only doom any chance of prelitigation settlement, but also impede future settlement discussions. Have the employee and at least one other legal professional review the letter to ensure it accurately portrays the facts and the law, and that it’s persuasive. See sample Demand Letters 10A-1, 10A-2, 10A-3 and 10A-4.

Preparing for Discovery

If your attempts at settlement don’t work and you have filed the complaint, your next step will be discovery. Before a viable discovery plan can be created, plaintiff’s counsel must understand the facts that are already known, the legal theories that are supported by those facts, and the facts that must be obtained to prove the legal theories put forth by the plaintiff and to disprove any affirmative defenses offered by the defendant.

Similarly, defense counsel must understand the facts that the plaintiff must obtain to prove his or her legal theories, the facts that the defendant must obtain to disprove the plaintiff’s legal theories and the facts that the defendant must obtain to prove its affirmative defenses. Hence, the starting point in nearly every case should be the creation of a “cast of characters” and a chronology. After these documents have been created, plaintiff’s counsel will be well-equipped to begin developing the legal theories upon which the defendant’s liability will be based, and subsequently, the facts that must be discovered. Similarly, defense counsel can use these documents to determine which facts must be discovered to prevent the plaintiff from establishing his or her claims or to prove the defendant’s affirmative defenses.

A “cast of characters” is a document that generally identifies all of the individuals involved in the plaintiff’s case (e.g., the defendants, witnesses, etc.). It includes contact information such as work and home addresses, telephone, fax and cell phone numbers, and e-mail addresses, and provides comprehensive background information. Advise the plaintiff to be overinclusive about the information provided about each “character.” For example, the “cast of characters” should include any and all derogatory information about each of the “characters” so you can determine whether there are useful facts that can be leveraged against the defendants. This document should also indicate whether the “character” is likely to be a friend (someone willing to cooperate or provide helpful testimony), a foe (someone unwilling to cooperate or who will provide negative testimony), or whether the allegiance is unknown. See sample Cast of Characters 6A.

A chronology is a document that briefly outlines the plaintiff’s career with the employer, including hire date, promotions, raises, performance evaluation ratings, bonuses or any criticisms of performance. It exhaustively details the events giving rise to the plaintiff’s potential claims and provides any other information about which the plaintiff thinks the attorney should be aware. See sample Chronology 6B.

A Word About Document Requests

Obtaining documents through the Federal Rules of Civil Procedure Rule 34 is a simple, straightforward procedure. Under Rule 34, any party can inspect any relevant documents within the possession, custody and control of the other parties simply by serving a written request. The request must set forth, either individually or by category, the items to be inspected, including a description of each with reasonable particularity. However, many courts have adopted local rules discouraging particularly broad requests. For example, a request for “each and every document supporting your affirmative defenses” or “each and every document supporting your denial that plaintiff was discriminated against” can be objected to as unduly broad. Although you can include such a broad request in your document request out of an abundance of caution, it’s good practice to also include more narrowly tailored requests.

As the plaintiff, you should design document requests that will force the defendant to produce documents regarding the type of discrimination, harassment or retaliation alleged by the plaintiff. For example, in a sexual harassment case, you will want to get documents regarding:

• the defendant’s policies and procedures regarding harassment;

• any sexual harassment training conducted by the defendant;

• the plaintiff’s complaint(s) of harassment;

• any investigation into plaintiff’s complaint of harassment;

• any discipline imposed on the alleged harasser;

• any other complaints of harassment against the harasser;

• any complaints of harassment against anyone working in the same work location as the plaintiff; and

• in a hostile work environment case, any documents regarding any sexual conduct in the same work location as the plaintiff.

See 6J-1 Document Request Propounded by Plaintiff, 6J-2 Document Request Propounded by Plaintiff (example 2), 6J-3 Request for Production Propounded by Defendant-Employer, 6J-4 Letter to Plaintiff Regarding Defendant’s Request for Production, and 6J-5 Sample Request for Documents — Electronic Discovery.

Document Production Tips

Upon receipt of the defendant’s Objections and Responses to the Plaintiff’s Request for Inspection of Documents, plaintiff’s counsel should carefully look for several “tricks” that defense attorneys use when they don’t want to produce certain documents.

The first trick that defense counsel might attempt is to “rewrite” the plaintiff’s request into a form they believe calls for the inspection of no documents that are harmful to the defendant. For example, suppose the request called for “any and all documents that relate or pertain to any charges, complaints, allegations or reports — formal or informal — of sexual harassment, discrimination or retaliation made against you.” After making numerous objections, the defendant would respond as follows: “Subject to and without in any way waiving the foregoing objections, or its General Objections, Defendant hereby produces all responsive documents pertaining to [its Chicago Office] [Manufacturing Department] [Sales Division].” The defendant chooses to artificially limit the scope of the plaintiff’s request to an office, branch, division or other sub­category in such a way that no harmful documents will have to be produced. Defense counsel counts on the plaintiff’s counsel either not noticing the limitation or not doing anything about it.

The second trick that defense counsel might attempt is to agree to produce all responsive, nonprivileged documents: “Subject to and without in any way waiving the foregoing objections, or its General Objections, Defendant hereby produces all responsive, non-privileged documents.” However, noticeably absent (if one is paying attention) from defendant’s response is a privilege log. Unless you demand a privilege log, you will never know what purported privileges the defendant is claiming. Generally, upon receipt of a privilege log, you can determine whether the privileges asserted are actual privileges and whether the documents are really protected by those privileges.

A proper privilege log will contain the following information:

• the nature of the document (letter, memorandum, handwritten notes, etc.);

• the authors of the document and the authors’ position (attorney, vice president, etc.);

• the date the document was created;

• the names and positions of the individuals to whom the document was addressed;

• the names of the individuals who actually received the document and their positions;

• the names of the individuals who have possession of the document; and

• the privilege under which the document is withheld.

Improper privilege logs can be problematic to your case. In U.S. v. Construction Products Research, Inc., 73 F.3d 464, 473 (1996), the court found the defendant’s privilege log insufficient. In its decision, the court stated “[t]he privilege log should: identify each document and the individuals who were parties to the communications, providing sufficient detail to permit a judgment as to whether the document is at least potentially protected from disclosure. Other required information, such as the relationship between … individuals not normally within the privileged relationship, is then typically supplied by affidavit or deposition testimony.”

Carefully examine the privilege log and conduct discovery to make sure the asserted privileges are actually applicable. Too often defense counsel will assert the “attorney-client privilege” when it actually doesn’t apply. For example, some defense counsel have been known to assert the attorney-client privilege for documents created at any meeting where an attorney was in attendance. This is improper. According to the court in SmithKline Beecham Corp. v. Apotex Corp., 403 F.3d 1331, 1346 (Fed. Cir. 2005), “[a]n attorney’s ‘mere attendance’ at a meeting cannot protect the notes produced from that meeting where they would ‘otherwise be discoverable … but for their creation in the presence of a lawyer.’”

Similarly, some defense counsel have been known to assert the attorney-client privilege for any documents that have been cc’d to an attorney. This is also improper, as found in USPS v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 163-64 (E.D.N.Y. 1994): “[A] corporation cannot be permitted to insulate its files from discovery simply by sending a ‘cc’ to in-house counsel.”

Finally, some defense attorneys try to assert the attorney-client privilege merely where an attorney has served as a conduit for documents from one person to another. Again, this is improper. In Dawson v. New York Life Ins. Co., 901 F. Supp. 1362 (N.D.Ill. 1995), the court found that cases where the attorney is acting as a conduit for factual data don’t implicate attorney-client privilege.

Whether working toward a settlement or filing the lawsuit, armed with the right tools and information, para­legals can play a vital role in employment discrimination cases.

Andrew H. Friedman has litigated virtually every type of employment case on behalf of management, individual defendants and plaintiffs. He is the author of "Litigating Employment Discrimination Cases" (www.jamespublishing.com or 800-440-4780), from which this article and the forms are excerpted.