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On the Pulse
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Taming the Terabyte
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In Good Form Litigating Employment Discrimination Cases.
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:
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:
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:
Improper privilege logs can be
problematic to your case. In
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 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.
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