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January 24, 2022

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What is “Discovery” in Employment Discrimination Case?

You’ve filed a promotion discrimination, sexual harassment, or other employment discrimination lawsuit in court, so what happens next?  Perhaps the most important, and certainly the most time-consuming, part of a court case is what’s called the discovery period.

The information you obtain during discovery will make or break your employment discrimination case.

Discovery defined

The discovery stage occurs before a trial and it’s the period in which the parties (you as the plaintiff; your employer as the defendant) exchange information related to your discrimination claim and your employment.

The legal definition of discovery says that parties may get information regarding any non-privileged matter that is relevant to either party’s claim or defense, consistent with the following factors:

  • the “proportional to the needs of the case”;
  • the “importance of the issues at stake” in the case;
  • the amount of money at issue;
  • “the parties’ relative access to relevant information”;
  • ” the parties resources”;
  • “the importance of the discovery in resolving the issues”; and
  • “whether the burden or expense of the proposed discovery outweighs its likely benefit”

In plain English, the discovery period is your opportunity to gather the facts and information you need to prove to a jury that your employer discriminated against you or harassed you.

Different discovery methods

This exchange of information is governed by specific rules, and the three most common types of discovery methods are:

  • depositions;
  • interrogatories; and
  • requests for production of documents

deposition is where your attorney may question your supervisors, colleagues, and other relevant witnesses under oath about your claims.  Likewise, your employer’s lawyers will be able to depose you and the witnesses you identify who have information about your case.

Interrogatories are written questions that must be answered under oath and usually ask for information you have about specific allegations in your complaint and witnesses who may have knowledge of your claims.

Requests for production of documents allow you to ask for, among other things, documents (paper and electronically stored information) that are in your employer’s possession, custody, or control, which relate to your discrimination claim.

The Federal Rules of Civil Procedure limit the amount of discovery that can be requested.  For example, each side can usually take 10 depositions in federal court, and depositions cannot last longer than seven (7) hours.

Similarly, each party is usually limited to 25 interrogatories in federal court.  But you should always check the local rules of the particular court in which your lawsuit is filed as these rules may have additional discovery limits and requirements.

discovery; computer search

Common discovery requests

In an employment discrimination lawsuit, the parties will seek a variety of information from each other.  Some of the more common examples of information your employer/defendant will ask for are:

Employees/plaintiffs similarly pursue information on a range of topics, including:

  • your personnel file (including performance evaluations, pay information, etc.);
  • how your coworkers (similarly situated employees) have been treated by the employer;
  • other complaints of discrimination lodged against the employer;
  • any investigation the employer conducted regarding the discrimination complaint;
  • emails, memos, and other communications regarding your complaint;
  • defenses your employer will assert and the identification of relevant witnesses

Each case is unique and the examples above are a small subset of the universe of information that will likely be sought during your lawsuit.

Additional discovery issues

It is an unfortunate fact of life that opposing parties in litigation often get bogged down in lengthy disputes about discovery.  One side may protest that the other is seeking far too much information and that the burden or cost of finding and producing the requested information far outweighs the potential evidentiary benefit.  This argument is regularly made if electronically stored information like emails and computer files (commonly referred to as “e-discovery” or “electronically stored information”) from years ago are at issue.

Likewise, your employer may request personal and confidential information from you, particularly if you claim that you suffered significant emotional distress because of the discrimination. These requests can include asking questions of your psychologist or counselor, finding out what medications you have taken, or probing traumatic events in your life that may account for your emotional distress.  Your lawyer should ensure that you are protected from harassing or over broad requests for these types of information and that you only answer requests that are reasonably tailored.

Finally, the Federal Rules of Civil Procedure, which govern how the parties conduct discovery in a federal lawsuit, were recently changed.  One of the key amendments involved adding a “proportionality” standard to discovery requests.  This proportionality standard means one party cannot require the other party to spend vast sums of money and resources to produce huge amounts of information in a relatively minor dispute. Not surprisingly, injecting the proportionality standard has led to additional fights among the parties about whether the discovery requested is proportional to the significance of the case.

© 2022 Zuckerman LawNational Law Review, Volume VII, Number 208
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About this Author

Zuckerman Law represents whistleblowers worldwide in Dodd-Frank SEC whistleblower rewards claims and represent whistleblowers nationwide in Sarbanes-Oxley retaliation claims and other whistleblower retaliation claims litigated before the US Department of Labor.

202-262-8959
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