The Federal Judicial Center has announced a new pilot program to streamline discovery in employment disputes filed in federal court.  The program, announced in November, would compel initial discovery for certain employment cases where an adverse action is alleged.  Under the program, parties would have to produce, as part of initial disclosures, commons discovery items that are asked in almost every case.  For example:

Plaintiff must produce:

• Communications with the employer concerning the factual allegations or claims at issue;
• All other claims, charges, complaints or lawsuits that rely on the same factual allegations or claims at issue in the suit;
• Documents concerning the formation and termination of the employment relationship;
• Documents concerning the terms and conditions of the employment relationship;
• Diaries, journals and calender entries maintained by plaintiff about the facts or claims in the lawsuit;
• Current resume;
• Documents concerning claims for unemployment benefits;
• Communications with prospective employers; job search efforts; offers; job descriptions; income and benefits of subsequent employment (although the program places limitations on the employer’s ability to obtain discovery from these third-party prospective or current employers);
• Documents regarding the termination of any subsequent employment;
• Any other document the plaintiff relies on to support his or her claims.

Employer’s must produce

• Communications between the plaintiff and the employer (its managers, supervisors and human resources representatives);
• Responses to complaints, claims, lawsuits or charges by the plaintiff that rely on the same facts or claims as the subject suit;
• Documents concerning the formation and termination of the employment relationship;
• Plaintiff’s personnel file;
• Plaintiff’s performance evaluations and formal discipline;
• Documents relied up on to make the employment decision at issue;
• Workplace policies relevant to the adverse action;
• Table of contents or index for the employee handbook or code of conduct;
• Job description for the position held by plaintiff;
• Documents showing the plaintiff’s compensation and benefits;
• Agreements between the parties to arbitrate or waive trial by jury of disputes;
• Non-privileged documents concerning any investigations done by the employer of the plaintiff’s complaints or allegations;
• Documents concerning unemployment benefits;
• Any other document on which the employer relies to support its defenses; affirmative defenses or counterclaims including any other document describing the reasons for the adverse action.

The initial disclosures must be made within 30 days of the employer’s first responsive pleading or motion thereby speeding the exchange of information between the parties.  The standing order also contains a model protective order for use in these proceedings.  Other than the limitation (or delay) on employers being able to subpoena records from the plaintiff’s subsequent employers, this programs sounds very interesting.  It is not unlike some of the standing discovery orders that are used by the California state courts.  I am hopeful that it will reduce some of the cost involved in defending employment claims for employers that are litigated in federal court.  I look forward to seeing how it works and expect it to be a success since the mandatory disclosure subjects are discovery items requested in almost every employment discrimination or retaliation case.

H/T to Molly DiBianca and Jon Hyman who first wrote about the new program.  (here and here) 

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