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D/ST'R?6~T~kCWTyCOURT
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JlJl f 9 2012
StePhcan Harris, Clerk
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
GENERAL ORDER REGARDING
Administrative General Order 2012-05 INITIAL DISCOVERY PROTOCOLS
FOR EMPLOYMENT CASES
ALLEGING ADVERSE ACTION
BEFORE NANCY D. FREUDENTHAL,
CHIEF DISTRICT JUDGE
The Honorable Nancy D. Freudenthal is participating in a Pilot Program for INITIAL
DISCOVERY PROTOCOLS FOR EMPLOYMENT CASES ALLEGING ADVERSE
ACTION, initiated by the Advisory Committee on Federal Rules of Civil Procedure (see
"Discovery protocol for employment cases," under "Educational programs and materials,"
at www.fjc.gov,) The Initial Discovery Protocols will apply to all employment cases
pending in this court that challenge one or more actions alleged to be adverse, except:
I. Class actions;
ii. Cases in which the allegations involve only the following:
1. Discrimination in hiring;
2. Violations of wage and hour laws under the Fair Labor Standards Act
(FLSA);
3. Violations of the Family Medical Leave Act (FMLA);
4. Violations of the Employee Retirement Income Security Act (ERISA).
Parties and counsel in the Pilot Program shall comply with the Initial Discovery Protocols,
attached to this Order. If any party believes that there is good cause why a particular case
should be exempted from the Initial Discovery Protocols, in whole or in part, that party may
raise the issue with the Court.
Within 30 days following the defendant's submission of a responsive pleading or
motion, the parties shall provide to one another the documents and information described in
the Initial Discovery Protocols for the relevant time period. This obligation supersedes the
parties' obligations to provide initial disclosures pursuant to F.R.C.P. 26(a)(1). The parties
shall use the documents and information exchanged in accordance with the Initial Discovery
Protocols to prepare the F.R.C.P. 26(f) discovery plan.
The parties' responses to the Initial Discovery Protocols shall comply with the
F.R.C.P. obligations to certify and supplement discovery responses, as well as the form of
production standards for documents and electronically stored information. As set forth in the
Protocols, this Initial Discovery is not subj ect to objections, except upon the grounds set forth
in F.R.C.P. 26(b)(2)(B).
Dated this ~ day of July, 2
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INITIAL DISCOVERY PROTOCOLS
FOR EMPLOYMENT CASES ALLEGING ADVERSE ACTION
PART 1: INTRODUCTION AND DEFINITIONS.
(1) Statement of purpose.
a. The Initial Discovery Protocols for Employment Cases Alleging Adverse Action
is a proposal designed to be implemented as a pilot project by individual judges
throughout the United States District Courts. The project and the product are
endorsed by the Civil Rules Advisory Committee.
b. In participating courts, the Initial Discovery Protocols will be implemented by
standing order and will apply to all employment cases that challenge one or more
actions alleged to be adverse, except:
I. Class actions;
ii. Cases in which the allegations involve only the following:
1. Discrimination in hiring;
2. Violations of wage and hour laws under the Fair Labor Standards Act
(FLSA);
3. Violations of the Family Medical Leave Act (FMLA);
4. Violations of the Employee Retirement Income Security Act (ERISA).
If any party believes that there is good cause why a particular case should be
exempted, in whole or in part, from this pilot program, that party may raise such
reason with the Court.
c. 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 (F.R.C.P.) and other applicable local rules, but they are intended to
supersede the parties' obligations to make initial disclosures pursuant to F.R.C.P.
26(a)(I). The purpose ofthe pilot project is to encourage parties and their counsel
to exchange the most relevant information and documents early in the case, to
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assist in framing the issues to be resolved and to plan for more efficient and
targeted discovery.
d. 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 F.R.C.P. 26(a)(l)
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 F.R.C.P. 34(a).
c. Identify (Documents). When referring to documents, to "identify" means to give,
to the extent known: (I) the type ofdocument; (ii) the general subject matter ofthe
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: (1) 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.
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(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 F .R.C.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 F .R.C.P. 26(e) regarding supplementation and
F.R.C.P. 26(g) regarding certification of responses.
e. This Initial Discovery is subject to F.R.C.P. 34(b)(2)(E) regarding form of
production.
PART 2: PRODUCTION BY PLAINTIFF.
(1) Timing.
a. The plaintiffs 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 plaintiffthat rely
upon any ofthe 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.
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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 plaintiffs current resume(s).
g. Documents in the possession ofthe 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) ofemployment, 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 plaintiffs
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 plaintiffhas applied for disability benefits and/or social security
disability benefits after the adverse action, whether any application has been
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granted, and the nature ofthe award, ifany. 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:
1. The plaintiff and the defendant;
11. The plaintiffs 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, ofthe 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 plaintiffs performance evaluations and formal discipline.
f. Documents relied upon to make the employment decision(s) at issue in this
lawsuit.
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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:
1. Discipline;
11. Termination of employment;
111. 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 plaintiffs 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.
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(3) Information that Defendant must produce to Plaintiff.
a. Identify the plaintiffs supervisor(s) and/or manager(s).
b. Identifyperson(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 ofthe facts concerning
the claims or defenses at issue in this lawsuit, and a brief description of that
knowledge.
d. State whether the plaintiffhas 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.
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MODEL PROTECTIVE ORDER
IT IS HEREBY ORDERED by the Court that the following restrictions and
procedures shall apply to certain infonnation, documents and excerpts from documents
supplied by the parties to each other in response to discovery requests:
1. D Counsel for any party may designate any document, infonnation contained in
a document, infonnation revealed in an interrogatory response or infonnation revealed
during a deposition as confidential if counsel determines, in good faith, that such
designation is necessary to protect the interests of the client. Infonnation and
documents designated by a party as confidential will be stamped "CONFIDENTIAL."
"Confidential" infonnation or documents may be referred to collectively as
"confidential infonnation."
2. D Unless ordered by the Court, or otherwise provided for herein, the Confidential
Infonnation disclosed will be held and used by the person receiving such infonnation
solely for use in connection with the above-captioned action.
3. D 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
Infonnation disclosed in this case is relevant or admissible. Each party specifically
reserves the right to object to the use or admissibility of all Confidential Infonnation
disclosed, in accordance with applicable law and Court rules.
4. D Infonnation or documents designated as "confidential" shall not be disclosed
to any person, except:
a. D The requesting party and counsel, including in-house counsel;
b. D Employees of such counsel assigned to and necessary to assist in the
litigation;
c. D Consultants or experts assisting in the prosecution or defense ofthe matter,
to the extent deemed necessary by counsel;
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d. 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 hislher testimony and may not
retain the Confidential Information; and
e. D The Court (including any clerk, stenographer, or other person having
access to any Confidential Information by virtue ofhis or her position with
the Court) or the jury at trial or as exhibits to motions.
5. D Prior to disclosing or displaying the Confidential Information to any person,
counsel shall:
a. D inform the person of the confidential nature of the information or
documents; and
b. D 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. D 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. D 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.
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8. 0 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 ofthe 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. 0 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.
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EXHIBIT A
I have been infonned by counsel that certain documents or infonnation to be disclosed to
me in connection with the matter entitled - - - -----------~-----------
have been
designated as confidential. I have been infonned that any such documents or infonnation labeled
"CONFIDENTIAL - PRODUCED PURSUANT TO PROTECTIVE ORDER" are confidential by
Order of the Court.
I hereby agree that I will not disclose any infonnation contained in such documents to any
other person. I further agree not to use any such infonnation for any purpose other than this
litigation.
_____________________________ DATED:
Signed in the presence of:
(Attorney)
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