Free: Proven Strategies and Forms
for Employment Discrimination
Tactics, arguments, and documents to help you with
Sometimes lawyers forget what counts with juries
and neutrals. They let
This wandering can be especially costly in
employment discrimination, where successful discovery and preparation
require a laser focus on surmounting
The practice-tested strategies and forms in these chapters from Andrew Friedman’s Litigating Employment Discrimination Cases will help. Written for both plaintiff and management lawyers by one who has worked both sides, these chapters deliver street-smart coaching.
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| Chapter One: | Federal Statutes Prohibiting Discrimination |
| Chapter Two: | Theories and Proof of Discrimination |
| Chapter Three: | Related State Torts |
| Chapter Four: | Case Evaluation |
| Chapter Five: | Pleading |
| Chapter Six: | Discovery |
| Chapter Seven: | Expert Witnesses |
| Chapter Eight: | Summary Judgment Practice and Procedure |
| Chapter Nine: | Pre-Trial Procedures and Documents |
| Chapter Ten: | Resolution Without Trial |
| Chapter Eleven: | Bankruptcy Issues in Employment Litigation |
| Chapter Twelve: | Insurance Issues in Employment Litigation |
Here are the first 22 pages of a
213-page chapter:
Chapter Six
Discovery
I. Preparation is Priceless
A. “Cast of Characters” and Chronology [§6:01]
1. Early in Case [§6:02]
2. Create “Cast of Characters” [§6:03]
3. Create Chronology [§6:04]
B. Develop Theory of Case [§6:05]
1. Identify Likely Claims and Defenses [§6:06]
2. Review Jury Instructions [§6:07]
C. Develop Discovery Plan [§6:08]
1. Purpose of Discovery Plan [§6:09]
2. Identify Best Means of Discovering Facts [§6:10]
a. Basic Points [§6:11]
b. Consider Informal Discovery [§6:12]
c. Format [§6:13]
[§§6:14–6:15 Reserved]
II. Informal Discovery
A. Affirmative Informal Discovery—Generally [§6:16]
1. Interview Third Party Witnesses [§6:17]
a. Strategic Considerations [§6:17.1]
b. Ethics Alert! [§6:17.2]
(1) Rules Prohibit Communication With Represented Person [§6:17.3]
(2) Knowledge of Representation May Be Imputed [§6:17.4]
c. Benefits of Witness Interviews [§6:17.5]
d. Draft Admissible Written Declaration [§6:17.6]
(1) Lack of Personal Knowledge [§6:17.7]
(2) Lack of Foundation [§6:17.8]
(3) Detailed Recitation of Facts [§6:17.9]
(4) Voluntary Statement [§6:17.10]
(5) Minimize Witness’ Ability to Recant [§6:17.11]
2. Learn About the Judge [§6:18]
3. Send Out Preservation of Evidence Letter [§6:19]
4. Mediation as a Discovery Vehicle? [§6:20]
[§§6:21–6:24 Reserved]
B. Affirmative Informal Discovery by Plaintiff [§6:25]
1. Enter Joint Prosecution Agreement [§6:26]
a. Protect Privileged Communications [§6:27]
b. When Privilege Attaches [§6:28]
c. Draft Joint Prosecution Agreement [§6:29]
(1) Joint
(2) Retroactive [§6:29.2]
(3) No Disclosure to Third Parties [§6:29.3]
(4) Termination [§6:29.4]
2. Consult Other Attorneys [§6:30]
a. Friends and Colleagues [§6:31]
b. City, State and National Plaintiff Networks [§6:32]
c. Plaintiff List-Serves [§6:33]
3. Explore Publicly Filed Documents [§6:34]
a. Federal Court Documents—PACER [§6:35]
b. State Court Documents [§6:36]
4. Conduct Internet Searches [§6:37]
a. General Internet Searches [§6:37.1]
b. EDGAR [§6:37.2]
c. Website of Defendant and Its Counsel [§6:37.3]
d. Blog Searches [§6:37.4]
5. Use Freedom of Information Act [§6:38]
a. Records Maintained by EEOC [§6:38.1]
b. Records Maintained by Other Governmental Agencies [§6:38.2]
6. Obtain Defense Counsel’s Agreement to Voluntarily Produce Information [§6:39]
7.
8. Gather and Review All Documents From Plaintiff [§6:41]
9. Send Out a Press Release [§6:42]
10. Set Up a Website and/or a Blog to Collect Information [§6:43]
11. Add Information About the Case to Your Website [§6:44]
12. Recommend that Plaintiff Seek Mental Counseling [§6:45]
[§§6:46–6:49 Reserved]
C. Defense Tactics to Foil Plaintiff’s Informal Discovery [§6:50]
D. Affirmative Informal Discovery by Defendant [§6:51]
1. Obtain Information From Co-Defendants [§6:52]
a. Enter Into Joint Defense Agreement [§6:53]
b. Terms of Agreement [§6:54]
(1) Common Defense [§6:54.1]
(2) Retroactive [§6:54.2]
(3) Confidentiality [§6:54.3]
c. Termination [§6:55]
2. Interview Plaintiff and Witnesses [§6:56]
a. Plaintiff [§6:56.1]
b. Witnesses [§6:56.2]
3. Interview Other Employees [§6:57]
a. Seek Plaintiff’s File From EEOC and State FEP [§6:57.1]
b. Conduct Public Records/Public Filings Search [§6:57.2]
4. Use Ancillary Proceedings [§6:58]
5. Consult Other Attorneys [§6:59]
a. In-House Counsel [§6:59.1]
b. Internal Inquiry [§6:59.2]
c. Friends and Colleagues [§6:59.3]
6. Gather and Review All Documents [§6:60]
7. Scour Plaintiff’s Computer and E-Mail [§6:61]
8. Conduct an Internet Search for Information About the Plaintiff [§6:62]
E. Plaintiff’s Tactics to Foil Defendant’s Informal Discovery [§6:63]
1. Instruct Plaintiff Not to Communicate With Others About Lawsuit [§6:63.1]
2. Defend Against Efforts to Interview Plaintiff [§6:63.2]
a. Employers Use Duty to Investigate as Sword [§6:63.3]
b. How Plaintiff Can Fight Back [§6:63.4]
(1) Document Plaintiff’s Cooperation [§6:63.5]
(2) Current Employees [§6:63.6]
(3) Former Employees [§6:63.7]
3. Control Ancillary Proceedings [§6:64]
4. Sanitize Web-Based Information About the Plaintiff [§6:65]
5. Search Plaintiff’s E-Mail [§6:66]
[§§6:67–6:74 Reserved]
III. Formal Discovery—Generally
A. Basic Points [§6:75]
1. Strive for Cooperative Effort Between Counsel [§6:76]
2. Scope of Discovery [§6:77]
a. Federal Rules of Civil Procedure [§6:78]
(1) FRCP 26(b) [§6:78.1]
(2) FRCP 26(g) [§6:78.2]
b. Case Law Favors Broad Discovery in Discrimination Cases [§6:79]
3. Discovery Priority [§6:80]
4. Ensuring That Evidence Is Preserved [§6:81]
a. Evidence Party Knows or Should Know Is Relevant [§6:82]
b. Evidence in Possession or Control of Third Party [§6:83]
c. Evidence Required by Law to Be Retained [§6:84]
B. Early Meeting of Counsel [§6:85]
1. Purpose and Scope [§6:86]
2. Topics of Discussion [§6:87]
3. Post-Meeting Obligations [§6:88]
a. Written Report [§6:89]
b. Initial Disclosures [§6:90]
C. Affirmative Formal Discovery—Basic Points and Strategies [§6:91]
D. Employer’s Formal Discovery—Generally [§6:92]
1. Prepare for Early Meeting of Counsel and Initial Disclosures [§6:93]
2. Begin Formal Discovery [§6:94]
3. Subpoena Plaintiff’s Records From Third Parties [§6:95]
4. Consider After-Acquired Evidence [§6:96]
5. Conduct Follow-Up Discovery [§6:97]
[§§6:98–6:99 Reserved]
IV. Affirmative Oral Discovery—Depositions
A. Basic Points [§6:100]
B. Deposition Notice [§6:101]
C. Preparing for Depositions [§6:102]
1. Create Outline [§6:102.1]
2. Consider Order of Questions [§6:102.2]
3. Consider Questioning Techniques [§6:102.3]
4. Retaining Control of the Deposition [§6:102.4]
[§§6:103–6:105 Reserved]
D. The Employment Discrimination Deposition [§6:106]
1. Purpose [§6:107]
2. How To: Tips and Techniques [§6:108]
3. Admonitions [§6:109]
4. Background Questions [§6:110]
E. Deposing Defendants [§6:111]
1. The Decision-Maker [§6:112]
a. Purpose: Discover Discriminatory Intent [§6:112.1]
b. Develop Circumstantial Evidence of Intent [§6:112.2]
2. The Harasser [§6:113]
3. The Human Resources Professional [§6:114]
4. The Investigator [§6:115]
5. In-House Counsel [§6:116]
6. Punitive Damages [§6:117]
a. Malice or Reckless Indifference [§6:117.1]
b. Imputed Liability [§6:117.2]
c. “Managerial Capacity”
F. Deposing the Plaintiff [§6:118]
G. Deposing Third-Party Witnesses [§6:119]
H. Deposition Questions for Specific Types of Discrimination Claims [§6:120]
1. Harassment [§6:121]
a. Questions for the Plaintiff [§6:121.1]
b. Questions for the Defendant [§6:121.2]
2. Discrimination [§6:122]
a. Questions for the Plaintiff [§6:122.1]
b. Questions for the Defendant [§6:122.2]
3. Retaliation [§6:123]
a. Questions for the Plaintiff [§6:123.1]
b. Questions for the Defendant [§6:123.2]
4. Disability Discrimination—Failure to Accommodate [§6:124]
a. Questions for the Plaintiff [§6:124.1]
[§§6:125–6:129 Reserved]
V. Affirmative Written Discovery
A. Inspection of Documents [§6:130]
1. Methods—Basic Points [§6:131]
2. FRCP 34—Request for Production of Documents [§6:132]
a. Procedure [§6:133]
(1) Serve Written Request [§6:133.1]
(2) Written Response Due Within 30 Days [§6:133.2]
(3) Produce Copies of Documents / Mark All Documents [§6:133.3]
b. Document Requests Propounded by Plaintiff [§6:134]
(1) General Categories of Documents [§6:134.1]
(2) Affirmative Defenses [§6:134.2]
(3) Adverse Employment Action Against Plaintiff [§6:134.3]
(4) Type of Discrimination Alleged by Plaintiff [§6:134.4]
(5) Similarly Situated Individuals [§6:134.5]
(6) Individual Defendants [§6:134.6]
(7) Investigatory Materials [§6:134.7]
(8) Submitted to or Received by Governmental Agencies [§6:134.8]
c. Document Requests Propounded by Defendant-Employer [§6:135]
(1) Document Requests Tracking Paragraphs in Complaint [§6:135.1]
(2) Documents Pertaining to Facts and Circumstances Supporting Plaintiff’s Claims [§6:135.2]
(3) General Documents Pertaining to Plaintiff’s Employment With Defendant [§6:135.3]
(4) Documents Relating to Damages [§6:135.4]
(5) Documents Relating to Mitigation Efforts [§6:135.5]
d. Responding Party’s Response [§6:136]
(1) Procedure [§6:136.1]
(2) Beware Common Defense Tricks [§6:136.2]
B. Inspection of Things Other Than Documents [§6:137]
C. Inspection of Premises [§6:138]
D. Inspection and Photographing [§6:139]
[§§6:140–6:144 Reserved]
E. Interrogatories [§6:145]
1. Basic Points [§6:146]
a. Limited to 25, Including Subparts [§6:147]
b. “Discrete” Subparts—Case Examples [§6:148]
2. Pros and Cons [§6:149]
3. Sample Interrogatories [§6:150]
a. Definitions [§6:151]
b. Background Information [§6:152]
c. Contract Claims [§6:153]
d. Discrimination and Wrongful Termination Claims [§6:154]
e. Harassment Claims [§6:155]
f. Disability Discrimination [§6:156]
g. Other Complaints [§6:157]
h. Damages [§6:158]
i. After-Acquired Evidence [§6:159]
F. Requests for Admission [§6:160]
1. Pros and Cons [§6:161]
2. Sample Requests for Admission [§6:162]
G. Discovery of Electronic Media [§6:163]
1. Basic Points [§6:164]
2. Sample Discovery [§6:165]
a. Request for Production of Electronic Media [§6:166]
b. Special Interrogatories [§6:167]
c. Deposition of Person Most Knowledgeable [§6:168]
d. Spoliation of Electronic Evidence [§6:169]
[§§6:170–6:174 Reserved]
VI. Defensive Oral Discovery—Plaintiff’s Deposition
A. Preparation Is Critical [§6:175]
B. Object to Deposition Notice [§6:176]
1. Timing of Deposition [§6:177]
2. Overbroad Document Request [§6:178]
C. Ensure Plaintiff Conducts Diligent Search for Responsive Documents [§6:179]
D. Avoid Pitfalls With Early Warning [§6:180]
E. Send Deposition Letter [§6:181]
F. Training Session One [§6:182]
1. Explain Theory of Case and Link Facts to Theories [§6:183]
a. Harassment [§6:184]
(1) Caution Plaintiff re Limited Scope of Federal Laws [§6:184.1]
(2) Protected Classification [§6:184.2]
(3) Unwelcome Conduct [§6:184.3]
(4) Severe or Pervasive [§6:184.4]
b. Discrimination [§6:185]
c. Retaliation [§6:186]
(1) Use Jury Instruction to Explain Concept [§6:186.1]
(2) Protected Activity [§6:186.2]
2. Explain Deposition Process [§6:187]
3. Explain General Rules for Testifying [§6:188]
4. Explain Objections [§6:189]
a. Vague and Uncertain [§6:189.1]
b. Lacks Foundation/Assumes Facts Not in Evidence [§6:189.2]
c. Compound [§6:189.3]
d. Asked and Answered [§6:189.4]
e. Document Speaks for Itself [§6:189.5]
f. Mischaracterizes Prior Testimony [§6:189.6]
g. Calls for Legal Conclusion [§6:189.7]
h. Unintelligible [§6:189.8]
i. Complex or Confusing [§6:189.9]
j. Lack of Personal Knowledge [§6:189.10]
k. Unfair Characterization [§6:189.11]
5. Explain Attorney-Client Privilege [§6:190]
6. Use Videotaped and PowerPoint Presentations to Teach Plaintiff [§6:191]
7. Search for Hidden Weaknesses [§6:192]
8. Assign Homework [§6:193]
[§§6:194–6:204 Reserved]
G. Training Session Two [§6:205]
1. Reiterate Theory of Case and Deposition Admonitions [§6:206]
2. Mock Deposition [§6:207]
a. Preliminary Questions [§6:208]
(1) Strategic Advice [§6:208.1]
(2) Sample Deposition Questions and Analysis [§6:208.2]
b. Admonitions [§6:209]
(1) Sample Questions [§6:209.1]
(2) Analysis [§6:209.2]
c. Background Questions [§6:210]
(1) Sample Questions [§6:210.1]
(2) Analysis [§6:210.2]
d. Review of Complaint [§6:211]
(1) Sample Questions [§6:211.1]
(2) Analysis [§6:211.2]
e. Document Production [§6:212]
(1) Sample Questions [§6:212.1]
(2) Analysis [§6:212.2]
f. Educational Background [§6:213]
(1) Sample Questions [§6:213.1]
(2) Analysis [§6:213.2]
g. Military Background [§6:214]
(1) Sample Questions [§6:214.1]
(2) Analysis [§6:214.2]
h. Employment History [§6:215]
(1) Sample Questions [§6:215.1]
(2) Analysis [§6:215.2]
i.
(1) Sample Questions [§6:216.1]
(2) Analysis [§6:216.2]
j. Application, Interview and Hiring Process [§6:217]
(1) Sample Questions [§6:217.1]
(2) Analysis [§6:217.2]
k. First Day of Work, Orientation, Job Duties [§6:218]
(1) Sample Questions [§6:218.1]
(2) Analysis [§6:218.2]
l. Supervisors [§6:219]
(1) Sample Questions [§6:219.1]
(2) Analysis [§6:219.2]
m. At-Will Employment [§6:220]
(1) Sample Questions [§6:220.1]
(2) Analysis [§6:220.2]
n. Company-Generated Documents [§6:221]
(1) Sample Questions [§6:221.1]
(2) Analysis [§6:221.2]
o. Work History with Defendant [§6:222]
(1) Sample Questions [§6:222.1]
(2) Analysis [§6:222.2]
p. Reductions-in-Force [§6:223]
(1) Sample Questions [§6:223.1]
(2) Analysis [§6:223.2]
q. Discharge [§6:224]
(1) Sample Questions [§6:224.1]
(2) Analysis [§6:224.2]
r. Resignation [§6:225]
(1) Sample Questions [§6:225.1]
(2) Analysis [§6:225.2]
s. Harassment—Severity and Pervasiveness [§6:226]
(1) Sample Questions [§6:226.1]
(2) Analysis [§6:226.2]
t. Harassment—Plaintiff’s Complaints About [§6:227]
(1) Sample Questions [§6:227.1]
(2) Analysis [§6:227.2]
u. Allegations of Discrimination [§6:228]
(1) Sample Questions [§6:228.1]
(2) Analysis [§6:228.2]
v. Claims of Retaliation [§6:229]
(1) Sample Questions [§6:229.1]
(2) Analysis [§6:229.2]
w. Damages—Mitigation Efforts [§6:230]
(1) Sample Questions [§6:230.1]
(2) Analysis [§6:230.2]
x. Damages—Economic Damages [§6:231]
(1) Sample Questions [§6:231.1]
y. Damages—Emotional Distress [§6:232]
(1) Sample Questions [§6:232.1]
(2) Analysis [§6:232.2]
z. Damages—Loss of Consortium [§6:233]
(1) Sample Questions [§6:233.1]
(2) Analysis [§6:233.2]
aa. Prior Charges of Discrimination [§6:234]
(1) Sample Questions [§6:234.1]
(2) Analysis [§6:234.2]
3. Debriefing [§6:235]
[§§6:236–6:239 Reserved]
H. Training Session Three [§6:240]
1. Videotaped Mock Deposition [§6:241]
2. Reiterate Ground Rules [§6:242]
I. Training Session Four: The Jury/Litigation Consultant [§6:243]
J. Defending Plaintiff at Deposition [§6:244]
1. Review Objections and Privileges [§6:245]
2. Assemble Folder of Cases and Statutes [§6:246]
3. Making Objections [§6:247]
a. Objections for the Record [§6:248]
b. Objections to Protect Case [§6:249]
4. Taking Breaks [§6:250]
K. When Should Plaintiff Counsel Ask Plaintiff Questions [§6:251]
L. Making Corrections to Plaintiff’s Deposition [§6:252]
[§§6:253–6:254 Reserved]
VII. Defense Mental Examination
A. FRCP 35—Basic Points [§6:255]
B. By Court Order or Stipulation [§6:256]
C. Mental Condition “In Controversy” [§6:257]
1. Minority View: Alleging Emotional Distress [§6:258]
2. Majority View: Balancing Test [§6:259]
3. Ongoing Mental Injuries [§6:260]
D. Examination Procedure [§6:261]
1. Three Phases [§6:262]
2. DSM Diagnosis [§6:263]
VIII. Depose Friendly Witnesses
A. Traditional Thought: Do Not Depose Friendly Witness [§6:264]
B. Exception: The “Tentative” Friendly Witness [§6:265]
C. Strategic Considerations [§6:266]
1. Represent Witness? [§6:267]
2. Prepare Witness? [§6:268]
[§§6:269–6:270 Reserved]
IX. Defensive Written Discovery
A. Inspection of Documents [§6:271]
1. FRCP 34—Basic Points [§6:272]
2. Format of Response [§6:273]
3. Objections [§6:274]
a. Object and Produce Documents [§6:275]
b. Object and Refuse to Produce [§6:276]
c. Object and Produce Limited Documents [§6:277]
4. Response [§6:278]
a. Agree to Produce Documents [§6:279]
b. Unable to Produce Documents [§6:280]
5. Production [§6:281]
B. Interrogatories [§6:282]
1. FRCP 33—Basic Points [§6:283]
2. Format [§6:284]
3. Object to More Than 25 Interrogatories [§6:285]
C. Requests for Admission [§6:286]
1. FRCP 36—Basic Points [§6:287]
2. Format [§6:288]
3. Response [§6:289]
a. Admission [§6:290]
b. Denial [§6:291]
c. Admit in Part, Deny in Part [§6:292]
4. Unable to Admit or Deny [§6:293]
5. Objections [§6:294]
D. Continuing Obligation to Supplement Responses [§6:295]
Forms (on CD-ROM)
Before You Begin
Form 6A: Cast of Characters
Form 6B: Chronology
Form 6C: Discovery Plan
Informal Discovery
Form 6D-1: Joint Prosecution Agreement—Short Form
Form 6D-2: Joint Prosecution Agreement—Long Form
Form 6E-1: Letter to Employer Requesting Plaintiff’s Personnel File
Form 6E-2: Letter—Plaintiff’s Response to Defendant’s Request for Interview
Form 6E-3: Sample Preservation Letter—To Plaintiff Client
Form 6E-4: Sample Preservation Letter—To Defense Client
Form 6E-5: Sample Preservation Letter—To Opponent or Third Party
Form 6F-1: Joint Defense Agreement—Short Form
Form 6F-2: Joint Defense Agreement—Long Form
Form 6G-1: Sample Press Release 1
Form 6G-2: Sample Press Release 2
Form 6G-3: Sample Press Release 3
Form 6G-4: Sample Quotes for Press Releases
Mandatory Discovery
Form 6H-1: Rule 26a Disclosures
Form 6H-2: Rule 16(c) Pretrial Conference Agenda for Computer-Based Discovery
Form 6H-3: FRCP 26 Joint Report
Defense Witnesses’ Deposition
Form 6I-1: Deposition Outline—Human Resources Representative
Form 6I-2: Deposition Outline—Investigator
Form 6I-3: Deposition Outline—Plaintiff
Form 6I-4: Sample FRCP 30(b)(6) Deposition Notice
Document Requests
Form 6J-1: Document Requests Propounded by Plaintiff
Form 6J-2: Document Requests Propounded by Plaintiff (Sample 2)
Form 6J-3: Requests for Production Propounded by Defendant—Employer
Form 6J-4: Letter to Plaintiff Regarding Defendant’s RFP
Form 6J-5: Sample Request for Documents—Electronic Discovery
Form 6J-6: Sample Request for Documents—Electronic Discovery (Alternate)
Form 6J-7: Subpoena for Inspection of Documents
Form 6J-8: Non-Waiver and Confidentiality Agreement
Interrogatories
Form 6K-1: Interrogatories—General (for Plaintiff or Defendant)
Form 6K-2: Interrogatories Propounded by Plaintiff
Form 6K-3: Special Interrogatories—Electronic Discovery
Form 6K-4: Special Interrogatories—Electronic Discovery (Alternate)
Plaintiff’s Deposition
Form 6L-1: Deposition Instructions for Client
Form 6L-2: Deposition Instructions for Client (Sample 2)
Form 6M: Power Point Presentation for Client—Prepare for Deposition (available on CD-ROM)
Form 6N: Deposition Objections and Privileges
Mental/Physical Examinations
Form 6O: Motion for a Mental Examination
Additional Discovery Forms
Form 6P: Motion to Quash Deposition Subpoena
Form 6Q: Sample Electronic Communications Policy
Form 6R:
Proposed Order Appointing Expert Third Party Neutral
I. Preparation is
Priceless
Preparation is priceless. It can mean the difference between dismissal on summary judgment and a multi-million dollar jury verdict. It can also mean the difference between viewing a case as one merely involving a single plaintiff as opposed to a nationwide class action. Preparation does not mean “whipping off” a complaint on the day the plaintiff’s statutes of limitations expire. Nor does it mean spending a couple of hours to “crank out” discovery requests or to prepare the plaintiff for deposition. Similarly, preparation does not mean beginning to draft discovery responses a few days before they are due. Instead, true preparation requires that the plaintiff’s employment practitioner spend a significant amount of time at each stage in the representation of the plaintiff, including: shaping the case before it may even be a case; developing and refining the plaintiff’s legal theories, factual support, and case themes prior to filing the complaint; engaging in intelligent discovery and motion practice; and, perhaps most importantly, being ready for any contingency that might develop at trial. While other chapters discuss the importance of preparation in other phases of the case, this chapter is designed to help the plaintiff’s employment practitioner handle all aspects of the discovery phase of the case in an effective and efficient manner.
Traditionally, many plaintiff’s employment practitioners viewed discovery as a nuisance through which they (or more often a junior attorney, paralegal, or even secretary) had to endure so that they could eventually “get to a jury.” Often, the traditional plaintiff’s employment practitioners did not serve their own discovery (usually haphazardly prepared) until after they had been served with the defendant’s discovery. Moreover, the traditional plaintiff’s employment practitioners usually did not even begin to prepare their case, much less their discovery responses or discovery requests until the day or two before discovery deadlines. Indeed, sometimes the plaintiff’s employment practitioners would only begin to learn about the plaintiff’s case during the plaintiff’s deposition. This knee-jerk or reactive approach to discovery did not optimize the plaintiff’s chances of prevailing or maximize the plaintiff’s recovery. By contrast, the modern plaintiff’s employment practitioners not only view discovery as an essential component of the plaintiff’s case but they also make full use of all available discovery methods.
In addition to the Early Meeting of Counsel, at which relevant discovery must be exchanged (FRCP 26(a)(1)), the Federal Rules of Civil Procedure authorize six primary methods by which discoverable information may be obtained:
-
Depositions (FRCP 30)
-
Documents Requests (FRCP 34)
-
Interrogatories (FRCP 33)
-
Requests for Admission (FRCP 36)
-
Physical and Mental Examinations (FRCP 35)
-
Exchange of Expert Witness Information (FRCP 26(a)(2))
As discussed below (see §§6:16 et seq.), in addition to the formal discovery methods authorized by the Federal Rules of Civil Procedure, many informal discovery methods are available for obtaining information (e.g., witness interviews, private investigators, public record searches, etc.).
In order to use these discovery methods in the most effective and efficient manner possible, it is important for both the plaintiff and defense employment practitioner to develop a discovery plan at the outset of the case and to readjust it as necessary throughout the case. However, before a viable discovery plan can be created, plaintiff’s counsel must understand: (1) the facts that are already known; (2) the legal theories that are supported by those facts; and (3) the facts that must be obtained in order 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: (1) the plaintiff must obtain in order to prove his or her legal theories; (2) the defendant must obtain in order to disprove the plaintiff’s legal theories; and (3) the defendant must obtain in order to prove its affirmative defenses. Hence, the starting point in nearly every case for both defense and plaintiff’s counsel 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 to develop 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 in order to prevent the plaintiff from establishing his claims and/or to prove the defendant’s affirmative defenses.
A. “Cast of Characters” and Chronology
[§6:01]
1. Early in Case [§6:02]
The plaintiff’s employment attorney should have
had the plaintiff create a “Cast of Characters” and a Chronology for the
initial case evaluation. See
Defense counsel, on the other hand, should begin to develop these documents immediately upon receipt of the complaint.
2. Create “Cast of Characters” [§6:03]
A “Cast of Characters” is a document that: (1) generally identifies all of the individuals involved in the plaintiff’s case (e.g., the defendants, witnesses, etc.); (2) includes contact information, such as work and home address, telephone numbers, facsimile transmission numbers, cellular numbers, and e-mail addresses; and (3) provides comprehensive background information. Advise the plaintiff to be over-inclusive 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 that 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 who is willing to cooperate and/or provide helpful testimony), a foe (someone unwilling to cooperate and/or will provide negative testimony), or whether the “character’s” allegiance is unknown. See Form 6A (Cast of Characters).
3. Create Chronology [§6:04]
A Chronology is a document that: (1) briefly outlines the plaintiff’s career with the employer (e.g., hire date, promotions, raises, performance evaluation ratings, bonuses, any criticisms of performance, etc.); (2) exhaustively details the events giving rise to the plaintiff’s potential claims (e.g., in harassment case, each act of harassment; in discrimination and retaliation, each act of discrimination and/or retaliation); and (3) provides any other information about which the plaintiff believes the attorney should be aware. See Form 6B (Chronology). As the plaintiff is unlikely to understand that “harassment,” “discrimination,” and “retaliation” can encompass a broad array of actions that a layperson might not otherwise think of as being covered by those terms, you should explain those terms to the plaintiff. Alternatively, some plaintiff employment practitioners simply instruct the plaintiff to include all negative acts (no matter how trivial) in the chronology.
B. Develop Theory of Case [§6:05]
1. Identify Likely Claims and Defenses [§6:06]
As soon as the “Cast of Characters” and the Chronology have been created, the plaintiff’s employment practitioner should begin to develop a list of the legal theories of liability and potential defenses that may be raised in the case. Expand the search for potential theories of liability beyond the specific legal theories on which the plaintiff may rest her claims. For example, upon closer examination, it may well turn out that a plaintiff with weak allegations of sexual harassment may have an excellent defamation case. Similarly, a plaintiff’s poor failure to accommodate case could be a powerful wage and hour claim. Among other potential claims, consider federal statutory claims (e.g., Title VII, ADA, ADEA, FMLA, etc.), as well as state statutory and common law claims (e.g., assault and battery, fraud and deceit, defamation, false imprisonment, negligent and intentional infliction of emotional distress, breach of contract, etc.). See generally Ch. 1, Federal Statutes Prohibiting Employment Discrimination; Ch. 2, Theories & Proof of Employment Discrimination; Ch. 3, Related State Torts.
2. Review Jury Instructions [§6:07]
Once the likely claims have been identified, carefully examine the relevant jury instructions to: (1) ensure that the claims are potentially viable; and (2) identify the elements of each claim that will have to be established in order to defeat summary judgment and prevail at trial. Once this has been accomplished, you will be in the position to create the discovery plan.
C. Develop Discovery Plan [§6:08]
1. Purpose of Discovery Plan [§6:09]
The purpose of the discovery plan is three-fold. First, to determine the types of discovery necessary to prove all of the facts required to: (1) satisfy each element of the claims being brought; and (2) prove the plaintiff’s damages. For example, under most employment-related claims (excluding contract claims), plaintiffs are entitled to emotional distress damages. However, some plaintiff’s employment practitioners believe that it is difficult to obtain significant emotional distress damages without “proof” that the plaintiff has suffered some type of emotional injury. Anticipating that the defendant will engage in discovery to determine if the plaintiff has “proof” of his emotional injuries, the plaintiff’s employment practitioner may recommend that the plaintiff begin seeing a psychiatrist or psychologist on a regular basis long before the plaintiff’s lawsuit is ever filed. Hence, when the defendant’s inevitable discovery regarding emotional distress damages arrives, the plaintiff will have plenty of “proof.”
Second, the discovery plan is designed to help combat potential defenses that the defendant(s) may assert. For example, if the defendant is likely to use the “after-acquired evidence” doctrine (a.k.a. the “after-invented” evidence argument) to attempt to limit its liability, the plaintiff should ensure that discovery is used to eliminate that defense by preventing the defendant from proving all of the elements of the defense. An examination of the appropriate jury instruction shows what a defendant must prove in order to succeed on an after-acquired evidence claim:
The defendant contends that the defendant would have made the same decision to [[discharge] [not hire] [not promote] [demote]] the plaintiff because [describe the after-discovered misconduct]. If the defendant proves by a preponderance of the evidence that the defendant could have made the same decision and [[would have discharged] [would not have hired] [would not have promoted] [would have demoted]] plaintiff because of [describe after-discovered evidence], you should limit any award of back pay to the date the employer would have made the decision to [[discharge] [not hire] [not promote] [demote]] the plaintiff as a result of the after-acquired information.
Manual of Model Civil Jury Instructions, Ninth
Circuit §12.5 (2001). See McKennon v. Nashville Banner Publishing Co.,
513
Based on this instruction, the plaintiff’s employment counsel will want to focus discovery on whether the employer treated similarly situated employees (i.e., other employees who engaged in the same purported misconduct) in the same manner as the plaintiff. That is, if the employer intends to argue that damages should be limited because the plaintiff lied on his resume, counsel should seek discovery of: (1) whether the employer has a policy regarding resume fraud; (2) whether the employer has terminated any other employees for resume fraud; and (3) whether the employer has not terminated any employees who engaged in resume fraud. In addition, during depositions of the employer’s employees, plaintiff’s counsel should go attempt to go through each employee’s resume with an eye toward proving resume fraud on their part. If such evidence is demonstrated and the employer does not fire the employee, the after-acquired evidence defense is eliminated. Hence, the practitioner will want to include in the discovery plan a method of proving, for example, that the employer knew that other employees engaged in the same type of conduct of which the plaintiff is now accused, and that the employer did not terminate those employees.
Practice Pointer:
Ninth Circuit instruction on after-acquired evidence
may not be adequate
Some commentators have said that the Ninth Circuit’s
jury instruction does not adequately state the law on after-acquired
evidence in two respects. First, the instruction could be read to mean
that the plaintiff’s damages should be limited as of the date the
employer would have made the decision to take the adverse employment
action against the plaintiff instead of the date the employer learned of
the after-acquired evidence. Second, the instruction implies, but does
not clearly state, that in order to prevail on the after-acquired
evidence defense, the employer must have treated other similarly
situated employees (i.e., all other employees who engaged in
similar misconduct) in a similar manner (i.e., with the same
adverse employment action). The following instruction attempts to remedy
these deficiencies:
The defendant contends that the defendant would have
made the same decision to [[discharge] [not hire] [not promote]
[demote]] the plaintiff because [describe the after-discovered
misconduct]. If the defendant proves by a preponderance of the
evidence:
1. Plaintiff engaged in [describe the
after-discovered misconduct];
2. Upon discovery that plaintiff engaged in [describe
the after-discovered misconduct], defendant would have made the
same decision and [[would have discharged] [would not have hired] [would
not have promoted] [would have demoted]] plaintiff because of [describe
after-discovered evidence]; and
3. Defendant has made the same decision and
[[discharged] [not have hired] [not have promoted] [demoted]] all other
employees who have engaged in [describe after-discovered evidence];
and
You should limit any award of back pay to the date
the employer learned that plaintiff engaged in [describe the
after-discovered misconduct].
Finally, plaintiff’s counsel will want to use the discovery plan to determine how best to “lock in” the defendant’s story, so that it cannot be credibly changed at trial.
2. Identify Best Means of Discovering Facts
[§6:10]
a. Basic Points [§6:11]
Once plaintiff’s counsel has identified the facts that need to be established and the defenses likely to be asserted, determine the method(s) by which that information can be obtained. Often, the facts can be obtained through a number of different discovery methods. When this is the case, weigh considerations of expediency, expense, and the likelihood of actually obtaining the information through the selected discovery method. For example, the most expedient and least expensive way to obtain the “fact” that the sexual harassment defendant fondled the plaintiff’s breasts is through a request for admission (e.g., “Admit that YOU fondled the PLAINTIFF’s breasts.”) Unfortunately, even if the defendant did fondle the plaintiff’s breasts, the defendant’s counsel will almost certainly never allow the defendant to make that admission. More than likely, defense counsel will come up some objections (e.g., Defendant objects on the ground the term “fondle” is vague and ambiguous) to avoid responding or the defendant will simply lie. Moreover, by sending out the request for admission, you put the defendant on notice as to what testimony is important. In this particular case, if any method of discovery is likely to yield an admission, it is the deposition.
In addition to determining how facts are to be gathered, the discovery plan should set forth the anticipated timing of the discovery.
b. Consider Informal Discovery
[§6:12]
In drafting the discovery plan, plaintiff’s counsel should remember that information can be obtained by both informal and formal discovery methods. Informal discovery consists of those discovery techniques that do not need statutory authorization, including:
-
Witness interviews
-
Public record searches
-
Communication with plaintiff’s attorney networks
-
Internet searches regarding the defendant and its counsel
-
Freedom of Information Act (“FOIA”) requests
-
Obtaining opposing counsel’s agreement to voluntarily produce information
Formal discovery includes those discovery methods specifically authorized by the Federal Rules of Civil Procedure including depositions (FRCP 30), documents requests (FRCP 34), interrogatories (FRCP 33), requests for admission (FRCP 36), physical and mental examinations (FRCP 35); and exchange of expert witness information (FRCP 26(a)(2)).
The primary advantage of informal discovery over formal discovery is that informal discovery can be conducted before a lawsuit is ever filed. An additional advantage is that informal discovery is generally less expensive and more expedient than formal discovery. The main detriment with informal discovery is that if you hit a roadblock in attempting to gain the information there is no apparatus to get an order from the court compelling the production of the information, as there is with formal discovery. Similarly, while responses to formal discovery will generally serve as binding admissions on the responding party, information obtained via informal discovery may well be precluded from use unless evidentiary hurdles (e.g., proper foundation, authentication, no hearsay) are cleared.
c. Format [§6:13]
There is no standard form for what a discovery plan should look like. Each practitioner has his or her own favorite style. For example, some practitioners use a “Check List,” while others use a chart, a graph, or a calendar. A sample discovery plan is set forth in Form 6C.
Practice Pointer:
Create individual party and witness files
Along with the formal the Discovery Plan, create a
notebook or file folder for the plaintiff, the defendants, and each
potential witness. Throughout the case, jot down miscellaneous thoughts
(e.g., deposition questions) and/or insert relevant documents
regarding these individuals.
Practice Pointer:
Create an “Idea” or “Brainstorming” List
You should also create an “Idea” or “Brainstorming”
List that is located where everyone working on the case can access it
and add to it. An “Idea” or “Brainstorming” List is somewhat like a To
Do List but more sophisticated. It should be designed to cover
strategies as well as tactics. The list should include information on
who created each item in the list, when it was created, and whether it
has been completed. For example, in a sexual harassment and retaliation
case, an “Idea” or “Brainstorming” List might look like the following:
Defendants’ Seventh Affirmative Defense is the
after-acquired evidence defense. As soon as the plaintiff’s resume,
employment application, and related pre-hire documentation is produced
in discovery, go over it line by line with the plaintiff to ensure it
does not provide evidence to support the after-acquired evidence
defense. [Name of associate] added this item on [date]. [Name of
partner] went through every pre-hire document produced in discovery and
plaintiff confirmed that everything on each document was accurate.
[Date]
Include in deposition outline questions designed to
reveal whether defendants have any evidence to support their Seventh
Affirmative Defense of after-acquired evidence defense. [Name of
associate] added this item on [date].
Defendants’ Ninth Affirmative Defense is the
Ellerth-Faragher affirmative defense. Plaintiff claims that she
waited 9 months to complain about the sexual harassment because she was:
(i) unaware that [name of employer] had an anti-sexual harassment
policy; (ii) never provided with anti-sexual harassment training by
[name of employer]; and (iii) afraid that she would be fired for
complaining because she had heard that someone else who had complained
about harassment from someone else at the company had been fired. The
documents produced by defendants in their Rule 26 did not include an
anti-sexual harassment policy. Nor did it include any type of
acknowledgment that the plaintiff attended anti-sexual harassment
training. We need to follow-up on this with document production
requests. We also should conduct discovery to learn more about the other
employee who complained about harassment. [Name of associate] added this
item on [date].
Plaintiff is a smoker. Remember to instruct
plaintiff not to smoke in or around courthouse if case goes to trial.
[Name of secretary] added this item on [date].
Plaintiff went out drinking with [name of harasser]
on several occasions after work. We need to work with plaintiff on this
area well in advance of her deposition. [Name of associate] added this
item on [date].
Plaintiff indicated that she was recently turned
down for employment by [name of prospective employer] because it had
done a background search on her, found this lawsuit, and said that they
do not hire applicants who have filed employment lawsuits. We need to
calendar the statutes of limitation on plaintiff’s claims against [name
of prospective employer]. We need to determine whether we want to
represent plaintiff in this new matter and, if so, whether it makes more
sense to file something now or wait until we conclude her current
lawsuit. [Name of associate] added this item on [date].
Defendants’ recent document production includes
several write-ups indicating that plaintiff was late for work on many
occasions. Plaintiff has been late to all of her appointments with us.
We need to discuss this issue with her and make absolutely sure that she
is not late to her deposition/mediation/arbitration.
The “Idea” or “Brainstorming” list should be
reviewed on a periodic basis by the lead attorney on the case to ensure
that no good idea goes unimplemented.
[§§6:14–6:15 Reserved]
II. Informal Discovery
This section addresses five general topics:
-
Affirmative informal discovery that can be utilized by both defense and plaintiff’s counsel [see §§6:16 et seq.]
-
Affirmative informal discovery that can be utilized by plaintiff’s counsel [see §§6:25 et seq.]
-
Tactics that defense counsel can use to foil plaintiff’s counsel’s informal discovery efforts [see §6:50]
-
Affirmative informal discovery that can be used by defense counsel [see §§6:51 et seq.]
-
Tactics that plaintiff’s counsel can use to foil defense counsel’s informal discovery efforts [see §§6:62 et seq.]
A. Affirmative Informal Discovery
—Generally [§6:16]
1. Interview Third Party Witnesses [§6:17]
a. Strategic Considerations
[§6:17.1]
One of the most successful types of informal discovery is interviewing and obtaining declarations from third-party witnesses. Indeed, this method of informal discovery is so important that many plaintiffs’ employment practitioners are reluctant to file a lawsuit unless they have first obtained several declarations confirming the plaintiff’s key allegations. Other plaintiff’s counsel are hesitant about obtaining declarations, especially in factually complex cases, for fear that, until all of the facts are known, there is too great a risk that the witness declarations will contain innocent mistakes that expose the witness to unnecessary credibility attacks. Instead, these more conservative plaintiff’s attorneys prefer, at least initially, to conduct extensive interviews with the witnesses and only obtain declarations later on in the proceedings.
In Practice:
Create a witness call sheet
In employment discrimination cases (particularly
harassment cases) there are typically a significant number of potential
witnesses. Because it is oftentimes difficult to track these witnesses
down, counsel should create a witness call sheet that identifies
counsel’s efforts to locate the witnesses and the witnesses’ responses
to counsel’s request to be interviewed. The witness call sheet is
particularly valuable where more than one person in counsel’s office is
attempting to locate and interview the witnesses. For example, if two
people have been assigned to track down witnesses and one of them
becomes involved in a lengthy trial or goes on vacation, the other
person can pick up where the first person left off.
Prudent employment counsel will balance the risk of obtaining a declaration with mistakes (because not all of the facts are known) with the possibility that the witness might never again agree to provide a declaration. Indeed, once a lawsuit is filed, defendants and their counsel usually begin a campaign of pressure, undue influence, and sometimes, outright intimidation in an effort to convince third party witnesses (especially their own employees) not to cooperate with plaintiff or her counsel.
Caution:
Assume declarations are discoverable
Although some cases suggest that declarations are
not discoverable because they are “work product,” [e.g., Intel
Corp. v. VIA Technologies, Inc., 204 F.R.D. 450, 452 (N.D.Cal. 2001)
(“In the present case, the declaration at issue was clearly work product
right up until the moment it was filed.”)], these cases are
questionable. Assume that declarations will be discoverable.
b. Ethics Alert! [§6:17.2]
(1) Rules Prohibit Communication With
Represented Person [§6:17.3]
When interviewing third party witnesses, be sure
you do not violate any ethical rules that might prohibit such
communications. For example, in many jurisdictions counsel will need to
be mindful of Rule 4.2 of the
In the case of an organization, this Rule prohibits communications by a lawyer for another person or entity concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.
Comment 4 to Rule 4.2.
See, e.g., Brown v. State of Or.,
Dept. of Corrections, 173 F.R.D. 265 (D. Or. 1997) (holding
that: (a) opposing counsel was prohibited from making ex parte contacts
with current employees of his client’s former employer who were in
management positions or any other employees whose conduct is at issue
because the opposing party might wish to hold the employer vicariously
liable for the acts or omissions of the current employee; (b) opposing
counsel could contact all non-management employees and question them
concerning their observation of harassing behavior, if any, committed by
other employees; and (c) opposing counsel could contact all former
employees of client’s former employer, even management level employees
and those employees whose conduct when employed at former employer was
at issue); National Association for Advancement of Colored People v.
Fla., 122 F. Supp.2d 1335, 1340-41 (M.D. Fla. 2000) (“[T]he Court
finds that Plaintiffs and their counsel may conduct ex-parte
communications with former employees of the Department under the
applicable ethical and procedural rules and the following guidelines:
(1) Plaintiffs’ counsel shall identify themselves immediately upon
contacting any former employees as the attorney representing the
Plaintiffs in the instant suit and specify the purpose of the contact.
(2) Plaintiffs’ counsel shall ascertain whether the former employee is
associated with the Department [by “associated with” the Court was
referring to those former employees who may have been members of
management or “high-level” employees who had access to privileged or
confidential communications/information, participated in decision-making
activities, and/or worked with the attorneys representing the
Department] or is represented by counsel. If so, the contact must
terminate immediately. (3) Plaintiffs’ counsel shall advise the former
employee that participation in the interview is not mandatory and that
he/she may choose not to participate or to participate only in the
presence of personal counsel or counsel for the Department. Counsel must
immediately terminate the interview if the former employee advises
he/she does not wish to continue. (4) Plaintiffs’ counsel shall advise
the former employee to avoid disclosure of privileged material. In the
course of the interview, Plaintiffs’ counsel shall not attempt to
solicit privileged information and shall terminate the interview should
it appear that the former employee may reveal privileged matters. (5)
Plaintiffs’ counsel shall create and preserve a list of all former
employees contacted, the date(s) of contact(s), the length of the
contact(s), and shall maintain and preserve any and all statements,
notes, or other evidence of such contacts whether by phone or in person.
(6) Any information, communications, or other evidence obtained by
Plaintiffs’ counsel in the course of interviewing former employees of
the Department may not later be used by the Plaintiffs against the
Department as a binding admission for the purposes of Rule 801(d)(2)(d)
of the Federal Rules of Evidence. (7) Should the Defendants have reason
to believe that a violation of either the ethical rules or this Court’s
Order has occurred, the Defendants shall file an appropriate motion with
this Court.”).
(2) Knowledge of Representation May Be
Imputed [§6:17.4]
Although plaintiff’s employment counsel generally will not know that a potential defendant is “represented by another lawyer in the matter” until a demand letter is sent or a complaint filed, some of the ethical rules suggest that such knowledge may be imputed to the attorney under certain circumstances. For example, Comment 5 to Rule 4.2 provides, in pertinent part, as follows:
The prohibition on communications with a represented person only applies, however, in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances. . . . Such an inference may arise in circumstances where there is substantial reason to believe that the person with whom communication is sought is represented in the matter to be discussed. Thus, a lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.
Other ethical rules are less restrictive than Rule
4.2 and require “actual knowledge” that a witness is represented.
Indeed, in Jorgensen v. Taco Bell Corp., 50 Cal.App.4th 1398
(1996), the court held that Rule 2-100 of the California Rules of
Professional Responsibility (which is virtually identical to Rule 4.2 of
the
Frivolous litigation is frequently avoided by a careful lawyer’s investigation of a client’s claims before filing suit. Rule 2-100 should not be applied to require that investigation of such claims not be undertaken before suit is filed because the party or employee investigated may be expected to obtain counsel at a future time. This file-first investigate-later result which appellant would generate through its application of Rule 2-100 is practically capable of compulsorily producing the type of frivolous litigation for which the Legislature has authorized the imposition of sanctions. We will not interpret Rule 2-100 so as manifestly to make the routine investigation of claims prior to filing of a lawsuit more difficult, when the persons being interviewed are not in fact known to be represented by counsel in the matter at the time of that interview. If corporations such as Taco Bell wish to avoid having their employees interviewed in such situations, they have a number of options. They can instruct their employees not to speak to claimant’s investigators. If they are aware of a matter which has been threatened or asserted but which has not yet resulted in litigation, they can send the other party a letter warning that their employees are represented by counsel in the matter, and may not be interviewed under Rule 2-100 without the consent of counsel.
50 Cal.App.4th at 1403 (citations omitted).
See also Snider v. Superior Court,
113 Cal.App.4th 1187, 1213, 7 Cal.Rptr.3d 119, 137-38 (2003) (“[T]o
avoid potential violations of the attorney-client privilege, an attorney
contacting an employee of a represented organization should question the
employee at the beginning of the conversation, before discussing
substantive matters, about the employee’s status at that organization,
whether the employee is represented by counsel, and whether the employee
has spoken to the organization’s counsel concerning the matter at issue.
If a question arises concerning whether the employee would be covered by
Rule 2-100 or is in possession of privileged information, the
communication should be terminated. Once a dispute arises that could
lead to litigation, it is also incumbent upon an organization and its
counsel to take proactive measures to protect against disclosure of
privileged information by informing employees and/or opposing counsel
their position concerning communications between employees and opposing
counsel. The exercise of caution and prudence on both sides will avoid
much of the potential for violations of Rule 2-100 or breach of
attorney-client relationships.”).
c. Benefits of Witness
Interviews [§6:17.5]
Assuming there are no ethical prohibitions, interviewing witnesses early in the case is generally preferable to waiting to conduct depositions for several reasons. First, by contacting a witness early, in an informal manner (versus serving the witness with a subpoena after the lawsuit has been filed), the plaintiff’s attorney can begin to develop a level of trust and cooperation with the witness which might not otherwise come about. Second, informal contacts will allow the plaintiff practitioner the opportunity to carefully craft a declaration that contains helpful testimony. See Practice Pointer, below. Third, even if the witness will not provide a declaration, she may provide a wealth of information that the plaintiff practitioner can use to develop a thorough deposition outline for the witness. If the plaintiff’s attorney secures a favorable declaration from the witness prior to the witness’s deposition, it is highly unlikely that the witness will recant her declaration testimony.
Practice Pointer:
Weigh benefits and risks of preparing instantaneous
declaration
Many attorneys, particularly defense attorneys, type
their witness interview notes into a laptop computer as they speak with
each witness. In this situation, it is relatively quick and easy to
immediately turn the interview notes into a declaration and have the
witness sign it during or at the end of the interview. The question is
whether a declaration should be prepared and obtained in this manner.
Assuming the witness indicates a willingness to execute a declaration,
the obvious advantage to obtaining a declaration in the initial
interview is that the witness will not have time to grow “cold feet” and
decide that he does not want to “get involved” in the case. Not
surprisingly, many individuals who initially agree to sign a declaration
change their minds when later presented with it.
Notwithstanding this important tactical advantage,
there are several risks in obtaining a declaration during the initial
interview. The first risk is that the declaration will contain
factual errors simply because it is written in a hurried fashion,
without time for careful proofreading and consideration of the accuracy
of its contents. If the declaration contains an error, even on a
seemingly harmless or tangential point, opposing counsel may be able to
attack the declarant’s credibility by showing that the witness falsely
declared to something under penalty of perjury. Similarly, the second
risk is that the declaration will be incomplete in an important
manner, again because it was written in a hurried fashion without time
for careful proof reading and consideration of the completeness of its
contents. For example, the declaration may contain a list of racial
epithets that the declarant heard the defendant call the plaintiff.
Later, the declarant may recall additional epithets. In this case,
defense counsel can argue that the witness is making up the additional
epithets because they weren’t included in the declaration.
Generally speaking, plaintiff’s attorneys should
risk getting an instantaneous declaration if the witness will provide
extremely helpful information. Defense attorneys, on the other hand,
should only risk an instantaneous declaration if the witness is a third
party (e.g., not an employee of the defendant) or is employed by
the defendant, but is about to be disciplined or terminated.
d. Draft Admissible Written
Declaration [§6:17.6]
In preparing a declaration for a witness, review Federal Rule of Evidence 56(e) (which provides that affidavits must be made on personal knowledge, that the declarant be competent to testify to the matters stated therein, and that sworn or certified copies of all papers referred to therein be attached to the declaration) and consider any evidentiary hurdles that may be raised in opposition to the declaration. The major obstacles to the successful introduction into evidence of any declaration are:
-
Lack of personal knowledge [see §6:17.7]
-
Lack of foundation [see §6:17.8]
-
Hearsay
-
Lack of authentication
(1) Lack of Personal Knowledge
[§6:17.7]
“Lack of personal knowledge” means that the declarant does not personally know the information to which he declares; rather, he is making a statement of opinion or is relying on hearsay. Federal Rule of Evidence 602 provides that “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” In order to minimize “lack of personal knowledge” problems, begin the declaration with a statement indicating that the declarant has personal knowledge: “I have personal knowledge of the facts stated herein and, if sworn as a witness, I could and would testify competently thereto.” Next, ensure that the declaration reflects the witness’ first-hand knowledge. The best way to reflect such knowledge is through the use of phrases like: “I saw . . .,” “I told [name of plaintiff] . . .,” “I heard . . .,” and “I did . . . ” If the witness must testify based upon his belief (as opposed to personal knowledge), try to bolster such testimony by using phrases like: “Based upon my work background and ___ years of experience at [name of defendant], I believe that . . .” Similarly, avoid the use of phrases such as: “To the best of my knowledge,” “I believe,” and “It is my understanding.”
(2) Lack of Foundation [§6:17.8]
The “lack of foundation” objection is often used
in conjunction with the “lack of personal knowledge” objection. “Lack of
foundation” is a broader objection than lack of personal knowledge
because it requires more specificity in showing that the declarant is
competent to testify. For example, when declaring to a conversation, the
declarant must provide information regarding “(1) when and where the
conversation occurred, (2) who was present and (3) who said what to
whom.” Houk v.
Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” FRE 801(c). In order to avoid hearsay objections, avoid statements such as, “Jane Doe told me that she heard David Defendant say that . . .”
Most “lack of authentication” problems occur in connection with documents. If the witness refers to a document in the declaration, ensure that the witness properly authenticates the document by indicating that he wrote it, received it, used it, or was present when others so did. 31 Wright & Gold, Federal Practice & Procedure: Evidence §7106, 43 (2000). In addition, attach a copy of the document to the declaration as an exhibit and use the following language:
A true and correct copy of this [name of document] is attached hereto as Exhibit ‘__.’”
If the witness draws a map or diagram which is attached as an exhibit, the following language should also be used:
“This [map, diagram] fairly and accurately depicts [describe what is shown in the exhibit].”
(3) Detailed Recitation of Facts
[§6:17.9]
In drafting the declaration, plaintiff’s counsel should frame the facts in the light most favorable to the plaintiff, while using neutral language when referring to any facts that are unfavorable to the plaintiff.
Craft the declaration to contain detailed and specific information rather than conclusory statements. For example, in a sexual harassment case, a percipient witness should not declare as follows:
David Defendant sexually harassed Pauline Plaintiff during the whole time that she was employed the company.
or
I saw David Defendant repeatedly sexually harass Pauline Plaintiff during the whole time that she was employed the company.
Rather, the witness should declare:
I saw David Defendant engage in the following conduct toward Pauline Plaintiff:
(a) On an almost daily basis, I saw David Defendant stare at Pauline Plaintiff’s breasts and I heard David Defendant make numerous sexually-oriented comments about her breasts including: “Wow, look at those!” and “I’d like to get my hands on those!”
(b) Several times a month, I saw David Defendant try to touch Pauline Plaintiff’s legs, rub her back, or hold her hand. Each time, I heard Pauline Plaintiff say words to the effect of “Stop it!” or “Cut it out!” I then heard David Defendant reply with words to the effect of: “Lighten up!” or “What’s your problem?”
Similarly, in a disability discrimination, a percipient witness should not declare merely as follows:
I believe that Peter Plaintiff was discriminated against because of his disability—Temporomandibular joint disorder (“TMJ”)—when Defendant Company demoted him because Peter Plaintiff was not able to drive to a customer’s location due to his TMJ.
Rather, the witness should give a much more detailed declaration such as the following:
I worked at Defendant Company from approximately March 2004 through December 2008. Peter Plaintiff worked at Defendant Company during part of the time that I worked at Defendant Company—approximately January 2006 through November 2008.
Peter Plaintiff and I held the same position at Defendant Company—Sr. Sales Account Representative. Approximately 15 other individuals also held the Sr. Sales Account Representative position during the time I worked at the company.
Peter Plaintiff told me that he had a severe case of TMJ. I also overhead Peter Plaintiff tell our immediate supervisor—Sally Supervisor—and our human resources representative—Jack Busybody—that he had TMJ. I also heard Pete Plaintiff inform Sally Supervisor and Jack Busybody that his TMJ prohibited him from going to visit customers whose offices were located on high floors in skyscrapers.
It was obvious to me that Peter Plaintiff had something seriously wrong with his face and/or jaw as he appeared to speak, eat, chew, and swallow with great difficulty. Frequently when he spoke or ate, I heard a strange “popping” noise. He told me that his TMJ caused him to suffer from severe migraines that were so bad he had to be treated at the emergency room. Once, I took him to the emergency room because of a migraine.
Shortly before Peter Plaintiff was fired by Sally Supervisor, I heard him tell her that he could not make a sales call on a particular customer because the customer’s offices were located on high floors in a skyscraper and his TMJ would cause him excruciating pain if he went to the customer’s office. Sally Supervisor told him that if he didn’t make the sales call, he would be fired. Peter Plaintiff asked if he could make the sales call telephonically. Sally Supervisor said no. Peter Plaintiff asked if he could switch customers with another Sr. Sales Account Representative. Sally Supervisor told him no and that he shouldn’t come back to work unless he made the sales call personally.
(4) Voluntary Statement [§6:17.10]
It is good practice to insert a “voluntariness statement” into the declaration. The “voluntariness statement” will help to defend against any charges that the witness was coerced into signing the declaration and will make it more difficult for the witness to recant. Sample “voluntariness” language is set forth below:
I am making this declaration voluntarily and of my own free choice. Neither [name of plaintiff or defendant], [his] [her] [its] attorneys, nor anyone else has forced me to make this declaration. No one has made any threats of any kind against me in an effort to make me sign this declaration. Similarly, no one has made any promises of any kind to me in an effort to convince me to sign this declaration.
(5) Minimize Witness’ Ability to
Recant [§6:17.11]
In addition to the “voluntariness statement,”
consider taking several additional steps to safeguard the testimony,
depending upon the likelihood of the witness later recanting. One simple
trick to combat any later
