written discovery fundamentals for employment...

Written Discovery Fundamentals for Employment Counsel Crafting Requests for and Responses to Interrogatories, Production and Other Written Discovery

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WEDNESDAY, FEBRUARY 15, 2012

Presenting a live 90-minute webinar with interactive Q&A

Christopher M. Leh, Of Counsel, Littler Mendelson, Denver

Michele L. Maryott, Partner, Gibson Dunn, Orange County, Calif.

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Written Discovery Fundamentals for

Employment Counsel February 15, 2012

Michele L. Maryott Gibson, Dunn & Crutcher LLP Irvine, California

Christopher M. Leh Littler Mendelson, PC Denver, Colorado

Overview

Keys To Effective Discovery In Employment Litigation

Discovery Planning Types Of Discovery Tools Responding To Discovery

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Purposes of Discovery

Collect Information And Evidence For Trial Develop Factual And Legal Theories For Trial Building Blocks For Summary Judgment Position Case For Pretrial Settlement Narrow Issues For Trial Avoid Surprises At Trial

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Practical Tips Beware Of Forms/Exemplars; Add Value In Discovery

Process Avoid Categorical Rules Planning Is Critical, But So Is Being Nimble To Conduct Effective Discovery, You Must Know Your Case Outline Elements Of Claims And Defenses Read The Complaint/Answer (Again) Jury Instructions Legal Research Memos

Review Any Prior Fact Investigation And Identify Evidentiary Gaps At The Outset

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Make a Discovery Plan

Put The Plan In Writing And Revise Regularly Potential Sources Of Proof For Claims And Defenses Information To Be Obtained Discovery Procedures To Be Utilized Scheduling And Sequencing Keep Client Abreast

Focus On Obtaining Admissible Evidence That Supports Your Position And Opposes The Other Side’s Position

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Think Strategically What Are The Litigation Objectives? What Do I Need To Prove My Case? Timing Plaintiff vs. Defendant Sequencing Of Written Discovery Documents Before/After Depositions

Evaluate Costs vs. Benefits Of Alternatives Consider Future Motions, Trial, And Appeal

Types of Written Discovery Tools

Informal Discovery Mandatory Disclosures Written Discovery Document Requests Interrogatories Requests For Admission

Subpoenas To Non-Parties Request For Medical Examination Request For Inspection

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Fact Pattern The defendant is a large general construction contractor that is erecting a facility for manufacturing weapons for the U.S. Department of Defense. Plaintiff is a working foreman on the project who has had performance problems, including safety violations that have resulted in job-related injuries in the past. After he is injured again on the job, he files a workers’ compensation claim. The Company’s safety manager concludes that a safety violation by the Plaintiff is partly to blame for the injury. The company fires the Plaintiff. Plaintiff later files suit in federal court for Title VII retaliation and wrongful discharge in violation of public policy, claiming back and front pay, economic damages, and severe emotional distress. He claims that he supervised a top performing lead carpenter who was one of the only women on site. He alleges that one week before his final job-related injury, his boss told him that he was getting pressure from management, which doesn’t like women in construction because they take jobs away from men. According to Plaintiff, the boss told him he was uncomfortable delivering the message, but if Plaintiff wanted to keep his job, he’d agree to monitor that carpenter closely, come down hard on her for any mistakes, and help the company build a paper trail for disciplining her and then pressuring her to leave. Plaintiff contends he told his boss that he wouldn’t do it and that the boss told him that that would not be good for Plaintiff’s future with the company. Plaintiff wrote a lot about what happened to him on his private Facebook page and in emails to friends. His old boss recently called him to say he quit under pressure because he got tired of pressuring foremen to take actions that were illegal.

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Protective Orders

Rule 26 Pros: Protecting Information Discharging Obligations To Non-Party Employees Facilitating Discovery

Cons: Ensuring All Or Most Information Becomes Public Creating Onerous Burdens

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Protective Orders (cont’d)

Defense Considerations Scope Bases Process Interaction With Local Rules

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Protective Orders (cont’d)

Plaintiff’s Content Bases Records 2-Level Protective Order Objections

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Informal Discovery Advantages: Secrecy, Less Expensive,

“Unfiltered” Information Internet Research Public Record Searches Private Investigators Experts And Consultants Interviews (But Be Careful With Ex-Corporate

Employees)

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Mandatory Disclosures Federal Rule 26(f) Conference And Joint Report Initial Disclosures – Rule 26(a) Expert Disclosures – Rule 26(b) No Need To Serve Discovery Requests For

Information That Must Be Disclosed Any Non-Privileged Matter Relevant To Any Party’s

Claim Or Defense For Good Cause, The Court May Permit Discovery

Of Information “Relevant To The Subject Matter Involved In The Action”

Duty To Supplement 17

Written Discovery

• Interrogatories • Document Requests • Requests For Admission • Requests For Inspection • Requests For Examination

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Interrogatories - Overview Rule 33 Pros: Inexpensive Obtain All Information “Available” Obtain Details, Contentions Prepare For Plaintiff’s Deposition Signal Adversary About Problematic Factual/Legal

Issues Open Door For Other Discovery

Cons: Only Served On Parties Attorney-Drafted responses Slower Responses, No Spontaneity/Follow-Up

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Interrogatories - Propounding Timing Know Your Purpose Structure Anticipating Objections Subjects Subjects To Consider Covering Subjects To Consider Avoiding

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Interrogatories - Responding Limiting Number Of Sets Logistics Client Communications Objections Structure Simplicity With Accuracy & Completeness Avoiding Coyness Protective Order Privilege Log Verification

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Interrogatories - Responding

Draft Carefully – Responses Are Binding And Will Be Shown In Depositions And At Trial Make Sure Client And Likely Rule 30(b)(6)

Witnesses Review And Approve Final Draft Of Responses If Factual Material Included Obligation To Supplement Responses

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A Word on California Form Interrogatories

Form Interrogatories/Employment Form Interrogatories

Do Not Count Against Interrogatory Number Limit Literally Check Boxes Can Be Helpful, But Think Carefully Can Create A Lot Of Work – For Your Opponent Or

You Your State May Have Similar Kinds Of Rules

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Written Discovery


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Document Requests - Overview

Rule 34 Pros: Documents Can’t Lie Unlimited Number Of Requests

Cons: Volume, Time-Consuming Lengthy Process To Compel

Be Careful What You Ask For – You Just Might Get It

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Document Requests - Objectives

Carefully Draft To Avoid Vagueness Or Ambiguity Be Prepared To Articulate A Relevance Theory

For Each Request Tailor Scope Of Requests To Avoid Burden

Challenge Cover Important Issues With A Series Of

Requests, Using Both Broad And Specific Language

Avoid Meaningless Generalities Ultimately, The Rules Control Obligations Of

Responding Party

Document Requests - Propounding Specific Requests Documents Identified In Initial/Supplemental

Disclosures Communications With Witnesses And Non-

Witnesses Documents Supporting/Refuting Allegations Documents Supporting Responses To Rogs or

RFAs Documents Supporting Affirmative Defenses

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Document Requests - Responding

Conduct Fact Investigation And Collect Documents Before Preparing Responses

Don’t Unequivocally State That Documents Will Be Produced If Responsive Docs May Not Exist

If No Responsive Documents Exist, State This Affirmatively

Get The Client Involved Early And Often Don’t Fight Over Unimportant Documents Turnabout Is Fair Play (Sometimes)

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Document Requests - Responding

Ask Yourself How The Judge Will View Responses/Conduct

Boilerplate General Objections Typically Aren’t Viewed Favorably

Tailor Specific Objections To The Request(s) Focusing On Specific Grounds May Narrow

The Requests

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Third-Party Discovery FRCP 45 (Incorporates FRCP 30 And 34 By Reference) Use A Subpoena To Compel: Deposition Appearance Production Of Documents Current Employers, Former Employers,

Employers With Whom Applied Medical Providers

Don’t Wait Until The Last Minute Best Practice: Check To See If Non-Party Is Client

Before Serving Subpoena Remember: Communications Are Not Privileged

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Written Discovery


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Requests for Admission - Overview Rule 36 Pros: Binding Admission Against Party Pin Down Key Facts/Elements Opponent Risks Proof Sanctions

Cons: Rarely Dispositive Equivocal Denials Only Served On Parties

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Requests for Admission – Propounding

Simplicity & Precision Is Crucial Establish Black/White Issues Lay Foundations For Admissibility Of

Documents Establish Facts You’d Rather Not Present At

Trial Don’t Take Too Many Issues Off The Table Consider Keeping Track Of Costs of Denial

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Requests for Admission – Responding

Meet The Request State Any Qualification Don’t Be Coy As to Denials, Be Wary of Potential Costs Respond TIMELY! Sign RFAs As Counsel

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Written Discovery


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Requests for Inspection

Rule 34 – Not Just Documents Inspect, Copy, Test, Sample Tangible

Thing/Place Reasonable Time, Place, Manner Establish Specific Protocol For Inspection Do Your Own Inspection

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Written Discovery


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Requests for Examination Rule 35 Pros: Opportunity To Get Plaintiff Examined Opportunity To Get Plaintiff Tested Checking For Malingering, Overdramatization May Help Strengthen Own Expert’s Testimony

Cons: Expense Motion Practice Potential Bad Evidence Rather Rely On Own Consulting Expert -> Testifying Expert

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Requests for Examination – Considerations for Both Sides

Defining Purpose(s) Voluntary through Negotiation When? Where? How Long? What Scope? What Method Of Examination? Who Is Examiner? Who Is Present And For What Purpose? Video Recording? When Is Report Due?

Involuntary Through Motion – Good Cause 39

Questions?

Michele L. Maryott Gibson, Dunn & Crutcher LLP Irvine, California (949) 451-3945 [email protected]

Christopher M. Leh Littler Mendelson, PC Denver, Colorado (303) 362-2888 [email protected] @christopherleh

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