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Legal Clinic

Post-Lawsuit Procedures

Employees who sue their companies are allowed to review a variety of documents or records as part of the pre-trial proceedings. While rules vary in different jurisdictions, the federal rules are often a good indicator of what materials need to be preserved and provided to the opposing party.

Monday, November 14, 2011
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Question: My company has just been sued by a former employee and it is my understanding that HR will need to provide documents in discovery. What kind of documents/records can the company expect to receive requests for in discovery? In other words, what types of company records can legally be subpoenaed?

Answer: Discovery is the pre-trial phase in a lawsuit in which each party has the opportunity to obtain information and evidence from the opposing party by means of a variety of tools including depositions, interrogatories and requests for production of documents.

A deposition is out-of-court oral testimony of a witness that is recorded and reduced to writing or videotape for later use in court. A party to a lawsuit may depose a witness or adverse party in order to gather information related to the case.

Interrogatories are specific written questions submitted to an adversary, who is required to respond in writing and under oath. Interrogatories must state questions in a precise manner so as to elicit answers that are pertinent to the issues being litigated in the case.

Your question, however, relates to the discovery tool known as a request or demand for production of documents. A party to a lawsuit is generally entitled to the production and inspection of relevant documents in the possession or control of an adverse party.

For example, the requesting party may seek to obtain copies of emails sent by the employees of the opposing party that involve issues reasonably related to the case.

Although discovery rules may vary by jurisdiction, the discovery rules under the Federal Rules of Civil Procedure are the rules most commonly applied.

At the outset of an employment litigation, counsel for the parties are usually required to produce four basic types of information to each other -- commonly known as "Automatic Disclosures." This information generally includes the name and contact information of potential witnesses, and the subject matter they will address; description of all documents that the party will rely on; computation and category of damages; and disclosure of any insurance agreement that may be applicable to satisfy any judgment in the matter. See Fed. R. Civ. P. 26(a)(1)(A).

Later in the employment-litigation discovery process, a company may be expected to comply with requests for production of documents. Typically in employment cases, companies are often expected to produce, at a minimum, a copy of the employee's personnel file, information related to the employee's pre-interview, compensation history, performance evaluations, described duties and attendance records, as well as the company's employee handbook and policies regarding health insurance and benefits, and a chart of the company's organizational structure.

However, these requests may vary depending on the type of employment case.

For example, in cases involving discrimination claims, a plaintiff's attorney may request that the company and its agents produce for inspection and copying documents that were submitted by the company to the U.S. Equal Employment Opportunity Commission; all complaints received by the company regarding claims filed by employees of the company with the EEOC or other state agencies alleging discrimination; any employment manuals related to the company's hiring, promotion, termination and disciplinary procedures and the handling of complaints of discrimination; all documents submitted by the company to the Office of Federal Contract Compliance related to ethnic makeup of the company's employees; and the personnel files and compensation information of those in the employee's position or similarly situated.

In a failure-to-promote lawsuit, a company may be requested to turn over copies of all documents related to the decisions about promotions granted or denied to the employee, communications regarding the retention and finding a placement for the employee, and documents related to all persons interviewed for the employee's position.

In a harassment case, a request may include any and all documents that pertain to the company's training, policies, guidelines or procedures regarding handling employee complaints of harassment; allegations made by the employee that he/she was being or had been harassed, retaliated against and/or otherwise treated unfairly; any investigations of the alleged harassment conducted by the company; any witness statements; any warnings or disciplinary action with regard to the alleged harasser; the personnel file of the alleged harasser; and any floor plans of the location where the employee worked.

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Documents are generally defined to include written material of whatever kind, whether typed, printed or handwritten, together with photographs, photocopies, and audio or videotape recordings.

In your case, the company would be required to furnish copies of any written materials that are responsive to the request. However, for documents that are unresponsive, destroyed, legally privileged and/or unduly burdensome to produce, the company may submit a response explaining why the documents cannot or should not be produced.

In order to properly comply with discovery rules; however, HR personnel should not go it alone. It is important that HR professionals work closely with employment counsel from the moment that a potential litigation becomes apparent, and throughout the discovery process in order to properly preserve documents.

Usually, counsel will ask HR to send out litigation-hold notices to all potential witnesses or custodians of potentially relevant documents in order to avoid the destruction (inadvertent or otherwise) of potential evidence.

Close consult with employment counsel is also necessary to ensure that no documents are produced that are (1) privileged (i.e., communications between a party and its legal advisers); (2) in response to an improper document demand (i.e., wholly irrelevant/ out of the scope of proper discovery and/or not calculated to lead to the discovery of admissible evidence); or (3) otherwise objectionable (i.e., would call for the production of documents that are not in the employer's custody and control, are unduly burdensome to locate/produce and/or duplicative of previously produced documents).

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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