Trial Magazine

Discovery is often a tedious, frustrating process. First, there is the concern about whether your interrogatories and requests for production are worded in just the right way to limit defense counsel’s ability to wiggle out of them. Second, countering a never-ending barrage of meritless objections consumes your limited and valuable time. Finally, there is the slog of reviewing material that is somehow both more than you need and yet not enough to prove your client’s case. In an employment discrimination case, what is already irritating can quickly become maddening.

Other than the rare occasion when a defendant discloses its discrimination openly, you will need to prove your case with multiple individual pieces of evidence. These pieces of evidence may be located in what seems like a limitless number of sources, including personnel files, policy manuals, emails, private text messages, handwritten, unrecorded verbal conversations, claims for unemployment benefits, and on and on.

With a little creativity and a good discovery plan, you should be able to find what you need to get your client’s case past summary judgment and to prove it before a jury. Here are seven areas to focus on.

1 Narrow requests for production to stave off an unhelpful deluge of materials.

Many attorneys request all information, on everything, within the possession of everyone. This makes sense: We are afraid we will miss the “smoking gun” email if we do not request every email. However, using only broad, generalized requests for production can quickly lead to getting too much material or no material at all.

Employees, supervisors, and managers can send and receive hundreds of emails a day. If the discrimination occurred over a period of weeks, months, or even years, requesting a broad email search can easily produce tens of thousands, even hundreds of thousands, of search results. It is common for defense counsel to object to such requests as unduly burdensome and overly broad.¹

Do you really need a company-wide search for “all emails relevant to any claim or defense in this action”? Try limiting your searches to key words or phrases and to certain employees or supervisors. First, target the emails of the discriminator or harasser; the key human resources (HR) personnel; and other employers, supervisors, or managers directly related to the facts of the case.

Ask your client what terms might help narrow down the search. For example, if your client is named “Scott” but everyone calls him “Sparky,” consider whether an email search for “Sparky” would be more efficient than a broad search for “Scott.”

Do not be afraid to search for words that make you uncomfortable. If a bad actor is bold enough to discriminate against a person based on race or sexual orientation, it is reasonable to think they are bold enough to use offensive slurs and language. Request that defendants search for those uncomfortable words.

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Narrow requests for production may not get you everything in the first round of discovery, but they can make discovery much more manageable.

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Once the first production has been made, it is usually easier to see where to search next. What other names appear in the emails? What terms has HR been using to describe your client’s situation? Narrow requests for production may not get you everything in the first round of discovery, but they can make discovery much more manageable and give guidance to your discovery efforts later in the case.

For example, your narrow requests may reveal that the supervisors met on a certain date, for the first time, to discuss your client’s alleged performance deficiencies. You now have a date, subject matter, and the names of the individuals involved to draft subsequent discovery requests, such as for all emails from the people involved from the date of the meeting until your client was terminated or all documents created for or generated as a result of that meeting.

Another option is to ask in a request for admission that the defendants admit that this specific meeting was the only meeting between your client’s supervisor and HR in which your client’s alleged performance deficiencies were discussed. If the defendants admit it, you have that fact established; if they deny it, you now have a specific line of inquiry to follow up on.

2 Figure out how the defendant functions internally.

Every defendant, from a small mom-and-pop store to a local municipality to a Fortune 500 company, will develop its own internal practices and procedures that dictate how that defendant functions on a day-to-day basis. Becoming familiar with the defendant’s internal workings—especially those that are not written down in official documents—can help guide discovery in a more efficient and effective way.

The easiest and first thing you can do is ask your client how everyday business is conducted. Are documents stored electronically, in hard copy, or both? If electronically, what storage software is used? How do employees communicate internally with each other? Do they use a collaborative application such as Microsoft Teams? At the beginning of the case, there may be no better person than your own client to guide you through the defendant’s internal practices and provide insight into where to direct discovery.

Be aware that some defendants have developed internal ways to keep relevant materials from being discovered. Asking witnesses about their personal knowledge as to the defendant’s day-to-day business functions can lead to surprising results. If a defendant has a personal assistant, they may have been responsible for handling paperwork associated with complaints or might unknowingly reveal to you that the supervisor keeps both a scanned copy and a separate hard copy of complaints.

Perhaps the person acting as the secretary of meetings keeps their rough drafts of meeting minutes on their desktop, unbeknownst to colleagues, and has a folder full of drafts that are not produced along with the formal copy of the meeting minutes. Ask witnesses how they would make a complaint to their supervisors, if they were going to make one.

In a recent case we handled, we made the standard request for all personnel files. Throughout depositions, we kept hearing about internal complaints that employees made, but we could not find any evidence of them. It was not until the last deposition—and just a few months before trial—that we learned that the defendant maintained two different sets of personnel files: the standard personnel file maintained by HR (which they initially produced) and a private “manager’s file” maintained by our client’s former manager (which they did not initially produce). Lo and behold, the manager’s file contained all the useful evidence.

In another discrimination case, we discovered that the defendant’s HR department did not maintain certain disciplinary records and reports against the individual defendants. Instead, they were kept (sometimes literally under lock and key) by a different department. We learned this only because the former HR director—who was also a client of ours—told us. Without her inside information, we may never have learned about these documents.

Don’t be surprised if defense counsel is not aware that their clients are sequestering these types of records in a separate location or file. Doing so allows defendants to advise their lawyers that all personnel files have been produced, even though relevant information is stored somewhere under a different category of files.

3 Request the relevant policies and comparator employee files.

If your client was denied an employment opportunity, make sure you obtain all hiring policies from the defendant. If your client was disciplined for conduct, get the defendant’s disciplinary and termination policies. Compare the called-for actions set forth in the policies with how the defendant acted—or failed to act—in your client’s case. A defendant’s failure to act in accordance with its own policies can be great evidence that discrimination occurred in your client’s case.

Employees typically skim most HR policies, and the depositions may be the first time that supervisors or managers have even seen these policies. Use the policies to undercut the defendant’s assertions that it acted in a methodical, thoughtful way when making the employment decision regarding your client. Perhaps there is evidence that the employer followed step-by-step progressive disciplinary procedures for other employees but not for your client. For example, if three verbal warnings are to be given before a written warning, and then two written warnings before termination, get HR to admit that your client received merely a single verbal warning before being terminated.

Using these policies and showing that your client was treated differently from what the defendant’s policies call for—or from how co-workers were treated for similar alleged misconduct—helps rebut the defendant’s claims that it had a legitimate, nondiscriminatory reason for its actions against your client. It is also important to remember that regardless of how obvious the discriminatory conduct was, defense counsel will always come up with some other reason to support the adverse employment action taken against your client.

In employment discrimination cases, most courts should allow you to request the personnel and disciplinary files of comparators, even if they are not named defendants. These files demonstrate how your client was treated when compared to their colleagues. If there are differences, this may lead to indirect evidence of discrimination. As a result, these types of files are deemed to be relevant under the federal and many states’ rules of civil procedure.²

4 Don’t overlook employees’ personal cellphones.

Since technology allows everyone to communicate almost instantaneously through a variety of electronic means, the sources of discoverable information have exploded. Employees may no longer have a designated cellphone that they use solely for work-related matters; instead, they may have a single cellphone for both work and personal matters.

In addition, the line between “work time” and “personal time” continues to blur, especially for those who work from home. The defendant’s employees could be using their personal cellphones to communicate with colleagues at all hours of the day. Defense counsel will likely object to a request for records from personal cellphones. An employer may allege it has no control over its employees’ personal cellphones and cannot produce any discoverable content on them. Despite these objections, district courts have ruled otherwise.

In a decision out of the Northern District of Texas, the court issued sanctions against the defendant-employer after the plaintiff’s direct supervisor deleted relevant text messages, despite those messages being on the supervisor’s personal cellphone.³

The court examined, and cited, related case law from across the nation compiling a set of factors to consider while deciding when personal cellphone messages are within the control of the employer.⁴ These factors include “(1) whether the employer issued the devices, (2) how frequently the devices were used for business purposes, (3) whether the employer had a legal right to obtain communications from the devices[,] (4) whether company policies address access to communications on personal devices,” and (5) “[whether] the phones are routinely used for business purposes.”⁵ The court noted that when an employer can be deemed to have control over an employee’s personal cellphone is “highly fact-specific.”⁶

If you think you are going to request personal cellphone records, make a plan. Request the defendant’s cellphone and electronic device policies, as well as its record retention policies. Ask your client if employees routinely use their personal cellphones for work-related matters. Find evidence that the defendant expects its employees to use their personal cellphones for work-related matters, such as providing a stipend to reimburse employees for their personal phones or having employees list their cellphone numbers in their signature blocks.

Get any deposition witness to testify that work business is conducted on personal cellphones. For example, the defendant-supervisor may insist that he does not use his personal cellphone for work-related matters. However, his assistant, your client’s co-workers, or HR may testify otherwise, perhaps without being aware that their testimony contradicts the defendant-supervisor’s stated position.

Tailor your discovery for specific date ranges and specific employees. Then, rely on the underlying principle that certain personal cellphone records are discoverable since discovery can be requested if the information sought “is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, 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.”⁷ This should help you overcome any defendant’s objection that the personal cellphone materials of their employees are not discoverable.

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Most places of business do not operate in a vacuum. Rather, they likely interact with vendors, clients, or other third parties who may have witnessed discriminatory conduct.

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5 Find disinterested third-party witnesses.

Most places of business do not operate in a vacuum. Rather, they likely interact with vendors, clients, or other third parties who may have witnessed discriminatory conduct. For instance, if your client was terminated from their employment at a convenience store for alleged laziness but you have reason to suspect it was race based, are there regular customers who can testify that when they went in to pick up their daily coffee and newspaper, your client was not only doing their job but hustling to keep the store running?

Does the defendant use a certain vendor or supplier of goods who fades into the background while performing their duties and overheard racist, sexist, or homophobic comments that managers or supervisors made?

Many of these people may not want to get involved for myriad reasons, but a disinterested third-party witness who can back up your client’s claims can help tip the scale in your client’s favor. It can be as simple as asking your client who they interacted with on a routine basis who did not work for the defendant. If there are board minutes, there may be a list of “other persons” present who attended the meeting for reasons unrelated to your client but who witnessed the hostility between the board and your client.

If you can find these people’s contact information (do not forget to search them out on social media), reach out to them directly. I usually try to save the detailed conversations for a phone call, knowing the conversations may be sought in later discovery. Explain that they may have witnessed something relevant to your case without even knowing it. Tell them how much you and your client appreciate them recounting what they saw or heard, regardless of how helpful it is.

If they are not willing to talk freely, decide whether the information you suspect the person has is worth issuing a subpoena for. Whatever you do, try to remain on their good side; otherwise, they may turn on your client, based solely on their dislike of you.

6 Look for former and current employees who are different from your client who can corroborate their claims.

Although any witness who is willing to corroborate your client’s claims is generally useful, some are better than others. If your client is a person of color, do they have credible white colleagues who are willing to testify on their behalf? If your client is a woman, does she have male colleagues who can provide evidence of the discrimination she faced? If your client is a member of the LGBTQ+ community, is there a heterosexual or cisgender employee who can vouch for the hurtful language directed at your client?

Defense counsel, their insurer, or the jury may feel that people with similar characteristics are biased to protect each other and that, therefore, their testimony is less credible. Former and current employees with opposite characteristics may help reduce that. Again, it can be as simple as starting with your client and asking her if she has any male colleagues, not just colleagues, who witnessed the harassment. Go through the list of “persons of knowledge” produced with the defendant’s initial disclosures with your client and, to the best extent possible, identify whatever characteristic is at issue in your case.

If you can, try to speak with these people informally first so you can gauge the strengths and weaknesses of their potential testimony. If it is valuable, schedule their deposition. I would avoid asking directly for a list of all employees, witnesses, and the like that fall within a specific protected characteristic as it seems ripe for an objection. Instead, you should be able to obtain the same information through a combination of talking to your client and internet sleuthing.

7 Beware your client’s own social media and email trails.

In employment discrimination cases, discriminatory conduct often is not a single event. Rather, the employee may be subject to discrimination and harassment over a period of time before they finally decide to come forward. Many employees find it easier to endure discrimination and to vent to their friends, family, and colleagues as their way of dealing with the stress. Tell your client up front that they should be prepared to disclose communications, postings, and other electronic data that they may have believed would be private.

If possible, pull your client’s social media history, cellphone history, and the like in advance. They may have unintentionally undermined their case, regardless of the reality of the situation. Have they sung the praises of the person they are now claiming harassed them? Have they talked to so many people about their situation that now all their friends and family are potential witnesses, all of whom will likely remember their conversations with your client differently? Your client’s social media history, texts, and emails can quickly discredit them, even if discrimination was a factor in their employment situation.

Luckily, district courts have hesitated to require plaintiffs to turn over large quantities of their social media history merely so defendants can go on fishing expeditions. Although there is no blanket privilege over social media posted to a private account, defendants do “not have a generalized right to rummage at will through information that [a] [p]laintiff has limited from public view.”⁸ A “defendant is no more entitled to such unfettered access to [a] plaintiff’s personal email and social networking communications than it is to rummage through the desk drawers and closets in [a] plaintiff’s home.”⁹ Rather, “there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.”¹⁰

The district courts have developed a test that can be a strong defense against broad requests for your client’s social media history. The test that courts across the country use requires a defendant seeking access to privately held social media content to first establish that publicly available content undermines the plaintiff’s claims and, therefore, producing social media content is reasonably calculated to lead to the discovery of admissible evidence.¹¹

If you have not already, ensure that all your client’s social media accounts are strictly set to private. Warn them about the dangers of seemingly innocuous posts and about allowing others to post material about them on third-party profiles, such as your client’s friends’ or family’s profiles.

Although discovery in all cases is a time-consuming process, incorporating some of these tips may save resources and help you find all the pieces you need to successfully prove your client’s employment discrimination case.

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Devin C. Kelly is an attorney at Roxanne Conlin & Associates in Des Moines and can be reached at dkelly@roxanneconlinlaw.com.

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Notes

1. For briefing on how to address these two commonly misused objections, feel free to email me.
2. See Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991) (personnel files of employees arguably guilty of more serious infractions than plaintiff were discoverable); Mo. Nat’l Educ. Ass’n v. New Madrid Cnty., 810 F.2d 164, 166 (8th Cir. 1987) (district court allowed access to personnel records of peers as there may have been evidence within the requested files that was relevant to the plaintiffs’ case); Weahkee v. Norton, 621 F.2d 1080, 1082 (10th Cir. 1980) (personnel files of employees who plaintiff claims were hired/promoted in discriminatory preference over him were discoverable); Gatewood v. Stone Container Corp., 170 F.R.D. 455, 458 (S.D. Iowa 1996) (compelling production of four personnel files of employees promoted to analogous positions with same selection criteria); Ladson v. Ulltra E. Parking Corp., 164 F.R.D. 376, 377 (S.D.N.Y. 1996) (“all that must be shown is that the discovery requested possibly might be relevant” in ordering the employer to produce personnel files of current and former employees); Momah v. Albert Einstein Med. Ctr., 164 F.R.D. 412, 417 (E.D. Penn. 1996) (personnel records and performance evaluations of other residents were discoverable).
3. Miramontes v. Peraton, Inc., 2023 WL 3855603, at *4–7 (N.D. Tex. June 6, 2023).
4. Id. at *4.
5. Id.
6. Id.
7. Fed. R. Civ. P. 26(b)(1).
8. Palma v. Metro PCS Wireless, Inc., 18 F. Supp. 3d 1346, 1347 (M.D. Fla. Apr. 29, 2014); Artt v. Orange Lake Country Club Realty, Inc., 2015 WL 4911086, at *2 (M.D. Fla. Aug. 17, 2015); Devries v. Morgan Stanley & Co. LLC, 2015 WL 893611, at *4 (S.D. Fla. Mar. 2, 2015); Davenport v. State Farm Mut. Auto. Ins. Co., 2012 WL 555759, at *2 (M.D. Fla. Feb.21, 2012); Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387,388 (E.D. Mich. Jan. 18, 2012).
9. Ogden v. All-State Career Sch., 299 F.R.D. 446, 450 (W.D. Pa. 2014).
10. Tompkins, 278 F.R.D. at 388.
11. Keller v. Nat’l Farmers 7 Union Prop. & Cas. Co., 2013 WL 27731, at *4 (D. Mont. Jan. 2, 2013); Potts v. Dollar Tree Stores, Inc., 2013 WL 1176504, at *3 (M.D. Tenn. Mar. 20, 2013).