INITIAL DISCOVERY PROTOCOLS
FOR EMPLOYMENT CASES ALLEGING ADVERSE ACTION
PART 1: INTRODUCTION AND DEFINITIONS.
(1) Statement of purpose.
a. The Initial Discovery Protocols are not intended to preclude or to modify the rights
of any party for discovery as provided by the Federal Rules of Civil Procedure (FED.
R. CIV. P.) and other applicable local rules, but they are intended to supersede the
parties’ obligations to make initial disclosures pursuant to FED. R. CIV. P. 26(a)(1).
The purpose of the pilot project is to encourage parties and their counsel to
exchange the most relevant information and documents early in the case, to assist
in framing the issues to be resolved and to plan for more efficient and targeted
discovery.
b. The Initial Discovery Protocols were prepared by a group of highly experienced
attorneys from across the country who regularly represent plaintiffs and/or
defendants in employment matters. The information and documents identified are
those most likely to be requested automatically by experienced counsel in any
similar case. They are unlike initial disclosures pursuant to FED. R. CIV. P. 26(a)(1)
because they focus on the type of information most likely to be useful in narrowing
the issues for employment discrimination cases.
(2) Definitions. The following definitions apply to cases proceeding under the Initial Discovery
Protocols.
a. Concerning. The term “concerning” means referring to, describing, evidencing, or
constituting.
b. Document. The terms “document” and “documents” are defined to be synonymous
in meaning and equal in scope to the terms “documents” and “electronically stored
information” as used in FED. R. CIV. P. 34(a).
c. Identify (Documents). When referring to documents, to “identify” means to give,
to the extent known: (i) the type of document; (ii) the general subject matter of the
document; (iii) the date of the document; (iv) the author(s), according to the
document; and (v) the person(s) to whom, according to the document, the document
(or a copy) was to have been sent; or, alternatively, to produce the document.
d. Identify (Persons). When referring to natural persons, to “identify” means to give
the person’s: (i) full name; (ii) present or last known address and telephone number;
(iii) present or last known place of employment; (iv) present or last known job title;
and (v) relationship, if any, to the plaintiff or defendant. Once a person has been
identified in accordance with this subparagraph, only the name of that person need
be listed in response to subsequent discovery requesting the identification of that
person.
(3) Instructions.
a. For this Initial Discovery, the relevant time period begins three years before the
date of the adverse action, unless otherwise specified.
b. This Initial Discovery is not subject to objections except upon the grounds set forth
in FED. R. CIV. P. 26(b)(2)(B).
c. If a partial or incomplete answer or production is provided, the responding party
shall state the reason that the answer or production is partial or incomplete.
d. This Initial Discovery is subject to FED. R. CIV. P. 26(e) regarding supplementation
and FED. R. CIV. P. 26(g) regarding certification of responses.
e. This Initial Discovery is subject to FED. R. CIV. P. 34(b)(2)(E) regarding form of
production.
PART 2: PRODUCTION BY PLAINTIFF.
(1) Timing.
a. The plaintiff’s Initial Discovery shall be provided within 30 days after the
defendant has submitted a responsive pleading or motion, unless the court rules
otherwise.
(2) Documents that Plaintiff must produce to Defendant.
a. All communications concerning the factual allegations or claims at issue in this
lawsuit between the plaintiff and the defendant.
b. Claims, lawsuits, administrative charges, and complaints by the plaintiff that rely
upon any of the same factual allegations or claims as those at issue in this lawsuit.
c. Documents concerning the formation and termination, if any, of the employment
relationship at issue in this lawsuit, irrespective of the relevant time period.
d. Documents concerning the terms and conditions of the employment relationship
at issue in this lawsuit.
e. Diary, journal, and calendar entries maintained by the plaintiff concerning the
factual allegations or claims at issue in this lawsuit.
f. The plaintiff’s current resume(s).
g. Documents in the possession of the plaintiff concerning claims for unemployment
benefits, unless production is prohibited by applicable law.
h. Documents concerning: (i) communications with potential employers; (ii) job
search efforts; and (iii) offer(s) of employment, job description(s), and income and
benefits of subsequent employment. The defendant shall not contact or subpoena
a prospective or current employer to discover information about the plaintiff’s
claims without first providing the plaintiff 30 days notice and an opportunity to
file a motion for a protective order or a motion to quash such subpoena. If such a
motion is filed, contact will not be initiated or the subpoena will not be served until
the motion is ruled upon.
i. Documents concerning the termination of any subsequent employment.
j. Any other document(s) upon which the plaintiff relies to support the plaintiff’s
claims.
(3) Information that Plaintiff must produce to Defendant.
a. Identify persons the plaintiff believes to have knowledge of the facts concerning the
claims or defenses at issue in this lawsuit, and a brief description of that knowledge.
b. Describe the categories of damages the plaintiff claims.
c. State whether the plaintiff has applied for disability benefits and/or social security
disability benefits after the adverse action, whether any application has been granted,
and the nature of the award, if any. Identify any document concerning any such
application.
PART 3: PRODUCTION BY DEFENDANT.
(1) Timing.
a. The defendant’s Initial Discovery shall be provided within 30 days after the defendant
has submitted a responsive pleading or motion, unless the court rules otherwise.
(2) Documents that Defendant must produce to Plaintiff.
a. All communications concerning the factual allegations or claims at issue in this lawsuit
among or between:
i. The plaintiff and the defendant;
ii. The plaintiff’s manager(s), and/or supervisor(s), and/or the defendant’s human
resources representative(s)
b. Responses to claims, lawsuits, administrative charges, and complaints by the plaintiff
that rely upon any of the same factual allegations or claims as those at issue in this
lawsuit.
c. Documents concerning the formation and termination, if any, of the employment
relationship at issue in this lawsuit, irrespective of the relevant time period.
d. The plaintiff’s personnel file, in any form, maintained by the defendant, including files
concerning the plaintiff maintained by the plaintiff’s supervisor(s), manager(s), or the
defendant’s human resources representative(s), irrespective of the relevant time
period.
e. The plaintiff’s performance evaluations and formal discipline.
f. Documents relied upon to make the employment decision(s) at issue in this lawsuit.
g. Workplace policies or guidelines relevant to the adverse action in effect at the time of
the adverse action. Depending upon the case, those may include policies or guidelines
that address:
i. Discipline;
ii. Termination of employment;
iii. Promotion;
iv. Discrimination;
v. Performance reviews or evaluations;
vi. Misconduct;
vii. Retaliation; and
viii. Nature of the employment relationship.
h. The table of contents and index of any employee handbook, code of conduct, or
policies and procedures manual in effect at the time of the adverse action.
i. Job description(s) for the position(s) that the plaintiff held.
j. Documents showing the plaintiff’s compensation and benefits. Those normally
include retirement plan benefits, fringe benefits, employee benefit summary plan
descriptions, and summaries of compensation.
k. Agreements between the plaintiff and the defendant to waive jury trial rights or to
arbitrate disputes.
l. Documents concerning investigation(s) of any complaint(s) about the plaintiff or made
by the plaintiff, if relevant to the plaintiff’s factual allegations or claims at issue in this
lawsuit and not otherwise privileged.
m. Documents in the possession of the defendant and/or the defendant’s agent(s)
concerning claims for unemployment benefits unless production is prohibited by
applicable law.
n. Any other document(s) upon which the defendant relies to support the defenses,
affirmative defenses, and counterclaims, including any other document(s) describing
the reasons for the adverse action.
(3) Information that Defendant must produce to Plaintiff.
a. Identify the plaintiff’s supervisor(s) and/or manager(s).
b. Identify person(s) presently known to the defendant who were involved in making the
decision to take the adverse action.
c. Identify persons the defendant believes to have knowledge of the facts concerning the
claims or defenses at issue in this lawsuit, and a brief description of that knowledge.
d. State whether the plaintiff has applied for disability benefits and/or social security
disability benefits after the adverse action. State whether the defendant has provided
information to any third party concerning the application(s). Identify any documents
concerning any such application or any such information provided to a third party.
PART 4: MODEL PROTECTIVE ORDER.
The Initial Discovery Protocols for Employment Cases Alleging Adverse Action are
designed to achieve the goal of more efficient and targeted discovery. If a protective order will be
entered in a case to which the Initial Discovery Protocols applies, immediate entry of the order
will allow the parties to commence discovery without delay. In furtherance of that goal, the
Employment Protocols Committee offers the following Model Protective Order. Recognizing that
the decision to enter a protective order, as well as the parameters of any such order, rests within
the Court’s sound discretion and is subject to local practice, the following provisions are options
from which the Court might select.
MODEL PROTECTIVE ORDER
It is hereby ordered by the Court that the following restrictions and procedures shall apply
to certain information, documents and excerpts from documents supplied by the parties to each
other in response to discovery requests:
1. □ Counsel for any party may designate any document, information contained in a
document, information revealed in an interrogatory response or information revealed
during a deposition as confidential if counsel determines, in good faith, that such
designation is necessary to protect the interests of the client. Information and
documents designated by a party as confidential will be stamped
“CONFIDENTIAL.” “Confidential” information or documents may be referred to
collectively as “confidential information.”
2. □ Unless ordered by the Court, or otherwise provided for herein, the Confidential
Information disclosed will be held and used by the person receiving such
information solely for use in connection with the above-captioned action.
3. □ In the event a party challenges another party’s confidential designation, counsel shall
make a good faith effort to resolve the dispute, and in the absence of a resolution, the
challenging party may thereafter seek resolution by the Court. Nothing in this
Protective Order constitutes an admission by any party that Confidential Information
disclosed in this case is relevant or admissible. Each party specifically reserves the
right to object to the use or admissibility of all Confidential Information disclosed, in
accordance with applicable law and Court rules.
4. □ Information or documents designated as “confidential” shall not be disclosed to any
person, except:
a. □ The requesting party and counsel, including in-house counsel;
b. □ Employees of such counsel assigned to and necessary to assist in the litigation;
c. □ Consultants or experts assisting in the prosecution or defense of the matter, to
the extent deemed necessary by counsel;
d. □ Any person from whom testimony is taken or is to be taken in these actions,
except that such a person may only be shown that Confidential Information
during and in preparation for his/her testimony and may not retain the
Confidential Information; and
e. □ The Court (including any clerk, stenographer, or other person having access to
any Confidential Information by virtue of his or her position with the Court) or
the jury at trial or as exhibits to motions.
5. □ Prior to disclosing or displaying the Confidential Information to any person, counsel
shall:
a. □ inform the person of the confidential nature of the information or documents;
and
b. □ inform the person that this Court has enjoined the use of the information or
documents by him/her for any purpose other than this litigation and has
enjoined the disclosure of that information or documents to any other person.
6. □ The Confidential Information may be displayed to and discussed with the persons
identified in Paragraphs 4(c) and (d) only on the condition that prior to any such
display or discussion, each such person shall be asked to sign an agreement to be
bound by this Order in the form attached hereto as Exhibit A. In the event such
person refuses to sign an agreement in the form attached as Exhibit A, the party
desiring to disclose the Confidential Information may seek appropriate relief from
the Court.
7. □ The disclosure of a document or information without designating it as “confidential”
shall not constitute a waiver of the right to designate such document or information
as Confidential Information provided that the material is designated pursuant to the
procedures set forth herein no later than that latter of fourteen (14) days after the close
of discovery or fourteen (14) days after the document or information’s production. If
so designated, the document or information shall thenceforth be treated as
Confidential Information subject to all the terms of this Stipulation and Order.
8. □ All information subject to confidential treatment in accordance with the terms of this
Stipulation and Order that is filed with the Court, and any pleadings, motions or other
papers filed with the Court disclosing any Confidential Information, shall be filed
under seal to the extent permitted by law (including without limitation any applicable
rules of court) and kept under seal until further order of the Court. To the extent the
Court requires any further act by the parties as a precondition to the filing of
documents under seal (beyond the submission of this Stipulation and Order
Regarding Confidential Information), it shall be the obligation of the producing party
of the documents to be filed with the Court to satisfy any such precondition. Where
possible, only confidential portions of filings with the Court shall be filed under seal.
9. □ At the conclusion of litigation, the Confidential Information and any copies thereof
shall be promptly (and in no event later than thirty (30) days after entry of final
judgment no longer subject to further appeal) returned to the producing party or
certified as destroyed, except that the parties’ counsel shall be permitted to retain
their working files on the condition that those files will remain confidential.
The foregoing is entirely without prejudice to the right of any party to apply to the Court
for any further Protective Order relating to confidential information; or to object to the production
of documents or information; or to apply to the Court for an order compelling production of
documents or information; or for modification of this Order. This Order may be enforced by either
party and any violation may result in the imposition of sanctions by the Court.
EXHIBIT A
I have been informed by counsel that certain documents or information to be disclosed to
me in connection with the matter entitled __________________________________ have been
designated as confidential. I have been informed that any such documents or information labeled
“CONFIDENTIAL – PRODUCED PURSUANT TO PROTECTIVE ORDER” are confidential
by Order of the Court.
I hereby agree that I will not disclose any information contained in such documents to any
other person. I further agree not to use any such information for any purpose other than this
litigation.
_____________________________________ DATED:
Signed in the presence of:
____________________________________ (Attorney)
