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Case 3:13-cv-00146-RNC Document 20 Filed 06/11/13 Page 1 of 5

INITIAL DISCOVERY PROTOCOLS FOR EMPLOYMENT CASES ALLEGING

ADVERSE ACTION



Effective December 1, 2012

PART I: INTRODUCTION
In applicable employment cases alleging adverse action, Judge Chatigny requires the
parties to utilize the following Initial Discovery Protocols which have been endorsed by
the Judicial Conference Advisory Committee on Civil Rules and are designed to achieve
the goal of more efficient and targeted discovery. This discovery shall be responded to
without objections (except attorney-client privilege and work product).

These 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 or 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)(l). The purpose of the initial
protocols 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.

These initial discovery protocols will apply to all employment cases that challenge one
or more actions alleged to be adverse, except:


A. Class actions
B. Cases in which the allegations involve only the following:

1. discrimination in hiring,
2. harassment/hostile work environment,
3. violations of wage and hour laws under the Fair Labor Standards Act (FLSA),
4. failure to provide reasonable accommodations under the Americans with

Disabilities Act (ADA),

5. violations of the Family Medical Leave Act (FMLA), and
6. violations of the Employee Retirement Income Security Act (ERISA).


Any party who believes that there is good cause why a particular case should be
exempted, in whole or in part, from these protocols may seek exemption by motion.

PART II: DEFINITIONS AND INSTRUCTIONS




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Case 3:13-cv-00146-RNC Document 20 Filed 06/11/13 Page 2 of 5

(1) 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 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.


(2) 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 III: PRODUCTION BY PLAINTIFF

(1) Timing




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Case 3:13-cv-00146-RNC Document 20 Filed 06/11/13 Page 3 of 5

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



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Case 3:13-cv-00146-RNC Document 20 Filed 06/11/13 Page 4 of 5

granted, and the nature of the award, if any. Identify any document concerning
any such application.

PART IV: 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.
ii.

the plaintiff and the defendant, and
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 plaintiffs 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:

discipline,
termination of employment,
promotion,
discrimination,
performance reviews or evaluations,

i.
ii.
iii.
iv.
v.
vi. misconduct,
vii.

retaliation, and



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Case 3:13-cv-00146-RNC Document 20 Filed 06/11/13 Page 5 of 5

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.



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