New York Lawyer's Legal Updates

Discovery in Employment Discrimination Cases

Author: New York Employment Discrimination Attorney Alena Shautsova

Majority of employment discrimination cases are filed in Federal courts, and hence the disclosure of the information by the both sides would be governed by the Federal Rules of Civil Procedure. Sometimes, a question of whether to file a case a state or federal court is a strategic one, as there are difference in statute of limitations; preferred forum; case law; and, of course, rules of evidence. Attorneys choose the filing forum, mostly, based on availability of attorney’s fees and statute of limitations.

After the parties exchanged pleadings, a stage of the case called discovery comes into play. Discovery is very important as it helps both sides to understand the case better, and often leads to settlements. In Federal courts, there is something called an automatic disclosure: basic information about the case that parties must exchange, often prior to the initial court conference. Then, the parties exchange discovery demands which usually consist of interrogatories (written questions that must be answered under the oath) and document demands.

While a party in federal court may pose only 25 written questions to its opponent; the state courts do not have such limitations. There is no limit for document demands in either state or federal court. Discovery should be tailored so that an asking party has an opportunity to clarify certain issues of her claim. A plaintiff in an employment case would probably want to see her personnel file together with the managers’ notes; records of similar employees who were or were not disciplined for the same actions; records of the company’s anti-discriminatory trainings; records of the company’s efforts to resolve the issues the plaintiff complained about (such us records of internal investigation)… The defense is usually seeking documents proving damages and mitigation of damages; as well as records of engagement in a protected activity: copies of employee’s previous complaints.

It is important to know that now all the information requested will be disclosed. It is so because the laws protect privacy and confidentiality of both sides of the process and limit discovery to relevant information.

In a state court, discovery stage may take years; in a Federal court it is usually controlled by a Magistrate judge and often is finalized within a year.

One of the main stages of the disclosure is examination before trial or depositions: verbal questions under oath with the court reporter present that opposing side through its counsel is asking the other side. Depositions play the key role in the discovery process: it is the first time the attorney for the opposing side may speak with the witness (even though with limitations) and may actually get a feel of the witness’ personality and candor. Questions at the depositions should be crafted carefully. For example: a question such as “What did your attorney tell you regarding this matter?” cannot be posed at all, and the witness have to decline answering it if it did, because communications between a client and an attorney are protected by the privilege. At the same time a question like “Did you consume any alcohol within the past 24 hours?” should not be regarded as offensive and is permissible because it helps to clarify if the witness’ ability to testify is impaired.

Discovery closes in a state court with filing of the note of issue and in federal court with pre-trial order.

06 September 2014
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