Upload
trantu
View
246
Download
8
Embed Size (px)
Citation preview
1
EVALUATION FORM
In order for us to improve our continuing legal education programs, we need your input. Please complete this evaluation form and place it in the box provided at the registration desk at the end of the session. You may also mail the form to CLE Director, NYCLA, 14 Vesey Street, New York, NY 10007.
How to Handle an Employment Discrimination Case Day One May 12, 2014; 6:00 PM – 9:00 PM
I. Please rate each speaker in this session on a scale of 1 - 4
(1 = Poor; 2 = Fair; 3 = Good; 4 = Excellent) Presentation Content Written Materials
Louis Pechman
Karen Cacace
Alan Serrins
Stephen Tisman
II. Program Rating:
1. What is your overall rating for this course? Excellent Good Fair Poor
Suggestions/Comments: ________________________________________________ _________________________________________________________________
A. Length of course: Too Long____ Too Short_____ Just Right_____ B. Scheduling of course should be: Earlier____ Later_____ Just Right_____
2. How did you find the program facilities? Excellent Good Fair Poor
Comments: ___________________________________________________________
_________________________________________________________________
3. How do you rate the technology used during the presentation?
Excellent Good Fair Poor
Comments: ___________________________________________________________
_________________________________________________________________ PLEASE TURN PAGE OVER
2
4. Why did you choose to attend this course? (Check all that apply)
� Need the MCLE Credits � Faculty � Topics Covered � Other (please specify) _______________________________________________
5. How did you learn about this course? (Check all that apply)
� NYCLA Flyer � NYCLA Postcard � CLE Catalog � NYCLA Newsletter � NYCLA Website � New York Law Journal Website � NYCLA CLE Email � Other (please specify)____________________________
6. What are the most important factors in deciding which CLE courses to attend (Please rate the factors 1- 5, 1 being the most important).
___ Cost ___ Subject matter ___ Location ___ Date and Time ___ Provider ___ Organization of which you are a member ___ Other______________________________________________ 6. Are you a member of NYCLA? ___ Yes ___No
III If NYCLA were creating a CLE program specifically tailored to your practice needs, what
topics or issues would you want to see presented?
NY
CL
A
CL
E
IN
ST
IT
UT
E
HOW TO HANDLE AN
EMPLOYMENT DISCRIMINATION CASE
DAY ONE Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY
scheduled for May 12, 2014
Program Chair: Louis Pechman, Berke-Weiss and Pechman LLP
Faculty: Karen Cacace, The Legal Aid Society; Alan Serrins, Serrins Fisher LLP;
Stephen E. Tisman, Blank Rome LLP
This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 3 Transitional and Non-Transitional credit hours:1 Skills; 1 Professional Practice and 1 Ethics.
This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 3 hours of total CLE credits. Of these, 1 qualifies as an hour of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law.
ACCREDITED PROVIDER STATUS: NYCLA’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey.
Information Regarding CLE Credits and Certification
How to Handle an Employment Discrimination Case Day One May 12, 2014; 6:00 PM to 9:00 PM
The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.
i. You must sign-in and note the time of arrival to receive your
course materials and receive MCLE credit. The time will be verified by the Program Assistant.
ii. You will receive your MCLE certificate as you exit the room at
the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.
iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.
iv. Please note: We can only certify MCLE credit for the actual time
you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.
v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.
Thank you for choosing NYCLA as your CLE provider!
New York County Lawyers’ Association
Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646
How to Handle an Employment Discrimination Case Monday, May 12, 2014; 6:00 PM to 9:00 PM
Day One
Program Chair: Louis Pechman, Esq. Berke-Weiss & Pechman LLP Faculty: Karen Cacace, Esq., The Legal Aid Society Alan Serrins, Esq., Serrins Fisher LLP Stephen E. Tisman, Esq., Blank Rome LLP
AGENDA 5:30 PM – 6:00 PM Registration 6:00 PM – 6:10 PM Introduction and Announcements 6:10 PM – 6:50 PM Overview of Agency Practice; Drafting a Complaint/Answer Karen Cacace, Esq. 6:50 PM – 7:30 PM Discovery Tips from Plaintiff's Perspective Alan Serrins, Esq. 7:30 PM – 7: 40 PM BREAK 7:40 PM – 8:20 PM Discovery Tips from the Defendant's Perspective Stephen E. Tisman, Esq. 8:20 PM – 8:50 PM Questions and Answers
NAT ASHA VELEZ, Plaintiff,
vs.
CHIPOTLE MEXICAN GRILL, INC; CHIPOTLE SERVICES, LLC; and CHIPOTLE MEXICAN GRILL OF COLORADO, LLC,
Defendants.
COMPLAIN
JURY TRIAL DEMANDED
Plaintiff, Natasha Velez, by and through her attorneys, The Legal Aid Society and
Friedman Kaplan Seiler & Adelman, LLP, alleges and states as follows:
PRELIMINARY STATEMENT
1. Natasha Velez, a domestic violence victim, brings this action for domestic
violence and disability discrimination against her former employer, Chipotle Mexican Grill, Inc.
(and its subsidiaries Chipotle Services, LLC and Chipotle Mexican Grill of Colorado, LLC
(referred to collectively, with Chipotle Mexican Grill, Inc., as "Chipotle")), for firing her in
violation ofthe New York State Human Rights Law, N.Y. Exec. Law§§ 290 et seq.
("NYSHRL"), and the New York City Human Rights Law, N.Y. City Admin. Code§§ 8-101 et
seq. ("NYCHRL").
2. Ms. Velez worked as a "crew member" at a Chipotle restaurant located in New
York, New York. Ms. Velez's job duties included, among other things, manual food preparation,
food and drink services, customer service, and working the cash register.
3. On January 1, 2013, Ms. Velez was the victim of a domestic violence incident
wherein she was assaulted by her then-boyfriend, who choked and threatened her, fracturing her
left index finger in the process. Following the assault, Ms. Velez promptly sought medical
treatment at a nearby emergency room where her finger was splinted and she was referred to a
hand surgery clinic for a follow-up evaluation.
4. On her next scheduled workday, Ms. Velez arrived at Chipotle early, with her
finger still splinted, and told her manager that she had been a victim of a domestic violence
incident. Ms. Velez showed her manager, who was already aware that Ms. Velez was in a
violent domestic relationship, both a copy of the police report she had filed regarding the
incident, as well as documentation ofher emergency room visit, and told him she had scheduled
an upcoming appointment to have her finger evaluated.
5. Ms. Velez's doctors determined that she was unable to return to work until
January 28, 2013. When Ms. Velez returned to Chipotle, she showed her manager a copy of an
order of protection she had been granted earlier that same day, prohibiting her assailant from
entering Ms. Velez's place of employment. In response, Ms. Velez's manager told her that she
had "too many issues outside of work" and fired her.
6. By this action, Ms. Velez seeks to recover damages caused by Chipotle's
unlawful conduct, including compensation for her lost wages and emotional distress, punitive
damages, attorneys' fees, and costs.
JURISDICTION AND VENUE
7. The Court has jurisdiction over each of Plaintiffs claims pursuant to 28 U.S.C.
§ 1332(a). The parties are completely diverse in citizenship and the amount in controversy
exceeds $75,000.
8. Venue lies in this judicial district pursuant to 28 U.S.C. § 1391(b) as this action
arose, in substantial part, within the Southern District ofNew York, where the unlawful practices
alleged herein occurred.
-2-
9. Contemporaneously with the filing ofthis complaint, Ms. Velez served a copy
upon the New York City Commission on Human Rights and the Office ofthe Corporation
Counsel of the City of New York, thereby satisfying the notice requirements of Section 8-502( c)
ofthe New York City Administrative Code.
PARTIES
10. PlaintiffNatasha Velez is an individual who currently resides and at all relevant
times resided in Manhattan, in the State ofNew York.
11. Ms. Velez is a "domestic violence victim" within the meaning ofthe NYSHRL,
and a "victim of domestic violence" within the meaning of the NYCHRL. Ms. Velez is also an
individual with a "disability" within the meaning of the NYSHRL and the NYCHRL, and until
the termination of her employment, was an "employee" of Chipotle.
12. Defendant Chipotle Mexican Grill, Inc. is a Delaware corporation with its
principal place ofbusiness in Denver, Colorado.
13. Upon information and belief, Defendants Chipotle Services, LLC (formerly
known as CMG Service Co., LLC) and Chipotle Mexican Grill of Colorado, LLC are
subsidiaries of Chipotle Mexican Grill, Inc. and are Colorado limited liability companies having
their principal places of business in Denver, Colorado.
14. Upon information and belief, Defendants operate over 1,500 Chipotle Mexican
Grill restaurants throughout the United States. Defendants are each registered to do business in,
and, upon information and belief, presently operate over 80 restaurants in, the state of New York.
15. Upon information and belief, Chipotle owns and operates a restaurant located at
281 Broadway, New York, NY, 10007, and a restaurant located at 1497 Third Avenue, New
York, NY, 10028.
-3-
16. Upon information and belief, Chipotle employs approximately 45,000 individuals
and is therefore an "employer" as defined by the NYSHRL and the NYCHRL.
FACTUAL ALLEGATIONS
17. In or around April 2012, Ms. Velez was hired as a "crew member" at the Chipotle
restaurant located at 281 Broadway, New York, NY, 10007. She earned $8.50 per hour. Her
job duties required the use of both her hands in a fast-paced work environment, including manual
food preparation (i.e., chopping vegetables, preparing guacamole, and other similar
responsibilities), food and drink service, customer service, and working the register. Ms. Velez
was also occasionally required to lift heavy boxes.
18. In or around September 2012, Ms. Velez was transferred to the Chipotle
restaurant located at 1497 Third Avenue, New York, NY, 10028, and given a raise to $9.00 per
hour, although her job title and duties stayed the same.
19. Ms. Velez's manager at the Third Avenue Chipotle restaurant, Delmas (last name
unknown), was aware that Ms. Velez was in a violent domestic relationship. In or around
December 2012, Ms. Velez's then-boyfriend came to the Third Avenue Chipotle restaurant
during her shift, asking for her. Ms. Velez told Delmas that her then-boyfriend had been violent
with her in the past, that she did not want to speak to him, and requested that Delmas ask him to
leave the restaurant. Delmas agreed to ask but said that he could not "make" the former
boyfriend leave.
20. On January 1, 2013, Ms. Velez was the victim of a domestic violence incident,
recorded in a police report, wherein her then-boyfriend choked and threatened her in her home.
As a result of the incident, Ms. Velez suffered, among other things, a fracture to her left index
finger. She called the police and sought prompt medical attention for her injuries at a nearby
emergency room, where she was provided a finger splint and prescribed pain medication. Her
-4-
treating physician also advised her to keep the splint on until she could attend a follow-up
appointment at a hand surgery clinic, which was scheduled on January 14, 2013 (the clinic's next
available appointment date).
21. Ms. Velez's next scheduled work day at Chipotle was January 7, 2013. On that
day, she went to her workplace before her shift was to start and spoke with Delmas. She told
Delmas about the domestic violence incident that had transpired on January 1, 2013, including
that her then-boyfriend had assaulted her and broken her finger, which was now wrapped in a
splint. Ms. Velez showed Delmas the police report from the incident as well as a record of her
visit to the emergency room, and she informed him that she would need to be out of work until at
least January 14, 2013, when her next doctor's appointment was scheduled. Delmas responded
that Ms. Velez should bring a doctor's note to Chipotle after her January 14, 2013 appointment.
22. On January 14, 2013, Ms. Velez attended her follow-up appointment at the hand
surgery clinic (still wearing a finger splint) and received a referral for physical therapy. Ms.
Velez's doctor also gave her a note stating that she would be unable to work until January 28,
2013. Ms. Velez brought this note on that same day to Delmas at Chipotle, who said that she
should return to Chipotle on January 28, 2013, pursuant to her doctor's instructions.
23. On January 23, 2013, Ms. Velez attended her physical therapy appointment and
was told she could remove the finger splint on her left index finger going forward.
24. On January 28, 2013, Ms. Velez obtained an order of protection against the man
who had assaulted her on January 1, 2013 (the "Order"). The Order prohibited, among other
things, the assailant from appearing at Ms. Velez's home, school, or place of employment. Ms.
Velez sought this order of protection in part because, as noted, she wanted to make sure that he
could not come to her workplace asking for her, as he had done in the past.
-5-
25. Later on January 28, 2013, Ms. Velez, now ready and able to work, went to her
workplace to get her upcoming work schedule, as per Delmas' earlier instructions. When she
arrived, however, Delmas said he needed to speak to her. Ms. Velez then showed Delmas the
Order. Delmas, in response, told Ms. Velez that she had "too many issues outside work" and
terminated her employment, effective immediately. Ms. Velez pleaded with Delmas not to fire
her, but he responded that there was "nothing he could do."
26. By engaging in the conduct described above, Chipotle discriminated against Ms.
Velez on the basis of her actual and/or perceived status as a domestic violence victim, including
by terminating her employment.
27. By engaging in the conduct described above, Chipotle also discriminated against
Ms. Velez on the basis ofher actual and/or perceived disability, including by terminating her
employment.
28. As a result of her termination, Ms. Velez has experienced significant emotional
distress, including sleeplessness, crying, depression, anxiety, and feelings of despair and
hopelessness. Through its agent, Delmas, Chipotle knew or should have known that terminating
Ms. Velez's employment because of her status as a domestic violence victim and/or because of
her disability would cause Ms. Velez to suffer such distress.
First Count
Violation of the New York State Human Rights Law, N.Y. Exec. L. § 296 (Domestic Violence Victim Status)
29. Ms. Velez incorporates the preceding paragraphs by reference.
30. Ms. Velez is a "domestic violence victim" as defined by Section 292(34) ofthe
NYSHRL in that she is a victim of an act that would constitute a family offense pursuant to
Section 812(1) ofthe Family Court Act, and her employer knew her to be as such.
-6-
31. The NYSHRL provides that "it that shall be an unlawful discriminatory practice
for an employer" to discharge an employee on the basis of his or her "domestic violence victim
status." N.Y. Exec. L. § 296(l)(a).
32. Chipotle violated the NYSHRL, including by terminating Ms. Velez's
employment because of her status as a domestic violence victim.
33. Ms. Velez has been, and continues to be, damaged as a result ofChipotle's
unlawful acts, including past and future lost wages and benefits, and past and future physical and
emotional distress.
Second Count
Violation of the New York City Human Rights Law, N.Y. City Admin. Code§ 8-107.1 (Domestic Violence Victim Status)
34. Ms. Velez incorporates the preceding paragraphs by reference.
3 5. Ms. Velez is a "victim of domestic violence" as defined by Section 8-1 07.1 (b) of
the NYCHRL, and her employer knew and/or perceived her to be as such.
36. The NYCHRL provides that "[i]t shall be an unlawful discriminatory practice for
an employer, or an agent thereof, ... to discharge from employment, or to discriminate against
an individual in compensation or other terms, conditions, or privileges of employment because of
the actual or perceived status of said individual as a victim of domestic violence." N.Y.C.
Admin. Code§ 8-107.1(2). Additionally, employers "shall make reasonable accommodation to
enable a person who is a victim of domestic violence ... to satisfy the essential requisites of a
job provided that the status as a victim of domestic violence ... is known or should have been
known" by the employer. !d.§ 8-107.1(3)(a).
-7-
37. Chipotle violated the NYCHRL, including by terminating Ms. Velez's
employment because of her actual and/or perceived status as a domestic violence victim, and/or
by failing to make reasonable accommodations.
38. Ms. Velez has been, and continues to be, damaged as a result ofChipotle's
unlawful acts, including past and future lost wages and benefits, and past and future physical and
emotional distress, and the attorneys' fees and costs of bringing this action.
39. Chipotle's intentional and unlawful conduct constitutes a malicious and/or
recklessly indifferent violation of Ms. Velez's rights under the NYCHRL and therefore entitles
Ms. Velez to an award of punitive damages pursuant to Section 8-502(a) of the NYCHRL.
Third Count
Violation of the New York State Human Rights Law, N.Y. Exec. L. § 296 (Disability Discrimination)
40. Ms. Velez incorporates the preceding paragraphs by reference.
41. Ms. Velez's physical or medical impairment(s) as described in this Complaint,
suffered as a result of a domestic violence incident, constitute a disability within the meaning of
Section 292(21) of the NYSHRL, and/or were regarded by her employer to constitute such a
disability. !d.
42. The NYSHRL provides that "it that shall be an unlawful discriminatory practice
for an employer ... to discharge from employment" any individual on the basis of that
individual's "disability," and to "refuse to provide reasonable accommodation to the known
disabilities of an employee." N.Y. Exec. L. §§ 296(1)(a), 296(3)(a).
43. Chipotle violated the NYSHRL, including by terminating Ms. Velez's
employment because of her actual and/or perceived disability, and/or by failing to accommodate
Ms. Velez's actual and/or perceived disability.
-8-
44. Ms. Velez has been, and continues to be, damaged as a result of Chipotle' s
unlawful acts, including past and future lost wages and benefits, and past and future physical and
emotional distress.
Fourth Count
Violation of the New York City Human Rights Law, N.Y. City Admin. Code§ 8-107 (Disability Discrimination)
45. Ms. Velez incorporates the preceding paragraphs by reference.
46. Ms. Velez's physical or medical impairment(s) as described in this Complaint,
suffered as a result of a domestic violence incident, constitute a disability within the meaning of
Section 8-102(16) of the NYCHRL, and/or were perceived by her employer to constitute such a
disability.
47. The NYCHRL provides that "[i]t shall be an unlawful discriminatory practice
[f]or an employer or an employee or an agent thereof, because of the actual or perceived ...
disability ... of any person, ... to discharge from employment such person or to discriminate
against such person in compensation or in terms, conditions or privileges of employment."
N.Y.C. Admin. Code§ 8-107(1)(a). The NYCHRL further requires employers to "make
reasonable accommodations to enable a person with a disability to satisfy the essential requisites
ofajob." !d.§ 8-107(15)(a).
48. Chipotle violated the NYCHRL, including by terminating Ms. Velez's
employment because of her actual and/or perceived disability, and/or by failing to accommodate
Ms. Velez's actual and/or perceived disability.
49. Ms. Velez has been, and continues to be, damaged as a result of Chipotle' s
unlawful acts, including the loss of past and future wages and benefits, and past and future
physical and emotional distress, and the attorneys' fees and costs of bringing this action.
-9-
50. Chipotle's intentional and unlawful conduct constitutes a malicious and/or
recklessly indifferent violation of Ms. Velez's rights under the NYCHRL and therefore entitles
Ms. Velez to an award of punitive damages pursuant to Section 8-502(a) of the NYCHRL.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this Court:
51. Declare that the acts complained of herein constitute violations of the NYSHRL
and the NYCHRL;
52. Order Defendants to compensate Plaintiff for her damages, including her past and
future loss of wages and benefits, and her past and future physical and emotional distress;
53. Reinstate Plaintiff to a position comparable to her former position or, in lieu of
reinstatement, award her front pay;
54. Enter judgment in favor ofPlaintifffor such amount as may be awarded for
punitive damages;
55. Award to Plaintiff all costs and reasonable attorneys' fees incurred in connection
with this action;
56. Award to Plaintiff such interest as is allowed by law; and
57. Grant such additional or alternative relief as may appear to this Court to be just
and equitable.
JURY DEMAND
Plaintiff demands a trial by jury.
-10-
Dated: New York, New York April 14, 2014
FRIEDMAN KAPLAN SEILER & ADELMANLLP
Je~~Of:?i Andrew M. Englander, Of Counsel 7 Times Square New York, NY 10036-6516 (212) 833-1100
-and-
Scott Rosenberg, General Counsel Adriene Holder, Attorney-in-Charge,
Civil Practice Karen Cacace, Supervising Attorney,
Employment Law Unit Katherine Greenberg, Of Counsel THE LEGAL AID SOCIETY 199 Water Street, 3rd Floor New York, New York 10038 Telephone: (212) 577-3300
Attorneys for Plaintiff Natasha Velez
-11-
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK [PLAINTIFFS’ NAMES], individually and on behalf of others similarly situated,
Plaintiffs,
-against- [DEFENDANTS’ NAMES],
Defendants.
Case No.:
PLAINTIFFS’ FIRST REQUEST FOR DOCUMENTS TO DEFENDANTS
To: OPPOSING COUNSEL
PLEASE TAKE NOTICE THAT, pursuant to Rules 26 and 34 of the Federal
Rules of Civil Procedure and Rule 26.3 of the Local Civil Rules of the Southern District
of New York, Plaintiffs _____________ (“Plaintiff Name,”) __________ (“Plaintiff
Name,”) and __________ (“Plaintiff Name”) (collectively “Plaintiffs,”) by and through
their attorneys, Serrins Fisher LLP, hereby demand the items enumerated herein be
produced by Defendants ________________ (“Defendant Name”) ____________
(“Defendant Name”) and _________________ (“Defendant Name”) (collectively
“Defendants”) in accordance with the definitions and instructions stated herein, within
thirty (30) days of service hereof, at Serrins Fisher LLP, 233 Broadway, Suite 2340, New
York, New York 10279, and that Serrins Fisher LLP, as attorneys for Plaintiffs, be
permitted to discover, inspect, test, photocopy, and/or photograph all items produced by
Defendants pursuant to this notice.
2
DEFINITIONS AND INSTRUCTIONS
A. All definitions and rules of construction set forth in both Rule 34 of the
Federal Rules of Civil Procedure and the Local Civil Rules of the Southern District of
New York shall apply to the Requests herein.
B. “Plaintiffs” refers collectively to [PLAINTIFFS’ NAMES], and each of
them, and shall include their agents, attorneys and representatives.
C. “Defendants” refers collectively to [DEFENDANTS’ NAMES], and each
of them, and shall include their officers, directors, employees, partners, corporate parent,
subsidiaries or affiliates.
D. “Person” is defined as any natural person or any legal entity, including,
without limitation, any business or governmental entity or association.
E. “Documents” include any designated documents or electronically stored
information – including writings, drawings, graphs, charts, photographs, sound
recordings, images and other data or data compilations – stored in any medium from
which information can be obtained either directly or, if necessary, after translation by the
responding party into a reasonably usable form. This includes all documents for which
privilege is claimed. If copies, reproductions or facsimiles of a document are not
identical by reason of handwritten notations, initials, identification marks or any other
modification, each such non-identical copy is a separate document within the meaning of
this definition.
F. “Communication” is defined as the transmittal of information (in the form
of facts, ideas, inquiries or otherwise).
G. “Date” means the exact day, month, and year, if ascertainable, or, if not,
3
Defendants’ best approximation thereof.
H. “Concerning” means relating to, referring to, describing, evidencing or
constituting.
I. “And”/”Or” shall be construed either disjunctively or conjunctively as
necessary to bring within the scope of the discovery request all responses that might
otherwise be construed to be outside of its scope.
J. “All”/”Any”/”Each” shall each be construed as encompassing any and all.
K. The use of the singular form of any word includes the plural and vice
versa.
L. The term “identify” means:
(i) when used with respect to a person, to give, to the extent known:
(a) the person’s full name; and
(b) present or last known address.
(ii) when used with respect to a natural person, to give, to the extent
known:
(a) the person’s full name;
(b) present or last known address; and
(c) present or last known place of employment.
(iii) when used with respect to a business, legal or governmental entity
or association, to give, to the extent known:
(a) the business, legal or governmental entity or association’s
legal name;
(b) the location of the business, legal or governmental entity or
4
association’s principal place of operation and main
telephone number; and
(c) the business, legal or governmental entity or association’s
owner(s).
(iv) when used with respect to a document as defined herein, to give, to
the extent known:
(a) the type of document;
(b) general subject matter;
(c) date of the document; and
(d) author(s), addressee(s) and recipient(s).
(v) when used with reference to a communication, to state:
(a) the date when and place where such communication
occurred;
(b) the means of communication (e.g., telephone, writings,
correspondence, personal conversations, meetings, etc.);
(c) the identity of the participants and witnesses; and
(d) the substantive information communicated.
M. 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.
N. When responding to the following Requests please specify which
documents are responsive to each Request and, where appropriate, to each sub-part
thereof.
5
O. Should Defendants assert a claim of privilege or work product for any
communications or documents about which information or inspection is requested, and a
complete answer is not provided on the basis of such assertion, identify the nature of the
privilege being claimed and provide the following information without causing disclosure
of the allegedly privileged information:
(i) a brief description of the subject matter of the document or
communication;
(ii) date of the document or communication;
(iii) recipient(s) of the document or communication; and
(iv) the grounds on which the claim of privilege or work product rests.
P. In the context of a Request or a response thereto, whenever necessary to
bring within the scope of the Request information that would otherwise be excluded
therefrom, the singular shall mean plural, and the masculine gender shall mean the
feminine, and vice versa.
Q. If you object to any portion of a Request, provide information as to those
portions of the Request to which you do not object. For those portions of any Request to
which you object, state in detail the reason for such objection.
R. If you cannot answer any of the following Requests in full after exercising
due diligence, so state and answer the Request to the fullest extent possible, specifying
your inability to answer the remainder and stating whatever information or knowledge
you have concerning the unanswered portions.
S. Each Request not only calls for information known to Defendants, but also
calls for all information available to Defendants through reasonable inquiry, including
6
inquiry of Defendants’ respective representatives and agents.
T. The relevant time period, unless otherwise stated, shall be from the time
[Company Name] opened to present, and shall include all documents and information
which relate in whole or in part to such period, or to events or circumstances during such
period.
U. These Requests are of a continuing nature. If after service of Defendants’
response, Defendants obtain additional information responsive thereto, they shall
promptly supplement or amend their response in accordance with Rule 26(e) of the
Federal Rules of Civil Procedure.
7
DOCUMENT REQUESTS
1. PLAINTIFFS’ PERSONNEL DOCUMENTS: Each Plaintiff’s
personnel file and all other documents regarding each Plaintiff’s employment with
Defendants, including, but not limited to, documents concerning:
a. Each Plaintiff’s application for employment;
b. Defendants’ job interview of each Plaintiff, if any, before she
was hired;
c. Defendants’ offer of a job to each Plaintiff;
d. Each Plaintiff’s acceptance of employment with Defendant
[Name];
e. The terms and conditions of each Plaintiff’s employment;
f. Each Plaintiff’s job performance, including evaluation(s)
and/or performance reviews; commendations or awards;
“good-job” letters; and memos of comment or criticism;
g. Each Plaintiff’s disciplinary history, including, but not limited
to, warning notices, if any;
h. Each Plaintiff’s salaries, raises, bonuses and fringe benefits;
i. Complaints regarding each Plaintiff or her work performance
and any warning notices issued to each Plaintiff regarding such
complaints;
j. Each Plaintiff’s demotions, promotions, transfers and/or
changes of position, if any;
k. Each Plaintiff’s IRS Form(s) W-4;
8
l. Each Plaintiff’s IRS Form(s) W-2 for each year worked since
2008;
m. Any alleged contracts or agreements entered into between each
Plaintiff and Defendants; and
n. Each Plaintiff’s cessation of employment with Defendants.
2. REPLACEMENT EMPLOYEES: All documents concerning the
interview, selection, hiring and terms and conditions of employment of the individual
who replaced each Plaintiff with Defendant [Name].
3. ORGANIZATIONAL CHARTS: All organizational charts or
documents demonstrating the reporting structure for each Plaintiff (i.e., to whom Plaintiff
reported) during her employment with Defendants.
4. JOB DESCRIPTIONS: Job descriptions for:
a. Defendant _________;
b. Defendant _________;
c. ______________; and
d. Each Plaintiff.
5. DEFENDANT [NAME]: Documents concerning Defendant
[Name], including, but not limited to:
a. Documents concerning claims or complaints of wage and hour
violations made against Defendant [Name] by Defendants’
current or former employees;
b. Documents concerning claims or complaints of discrimination
and/or harassment made against Defendant [Name] by
9
Defendants’ current or former employees from January 2008 to
present;
c. Defendant [Name]’s personnel file;
d. Defendant [Name]’s job performance, including evaluation(s)
and/or performance reviews, commendations or awards, “good-
job” letters and/or memos of comment or criticism;
e. Defendant [Name]’s disciplinary history, including, but not
limited to, warning notices;
f. Defendant [Name]’s salary, raises, bonuses and fringe benefits;
and
g. Defendant [Name]’s demotions, promotions, transfers and/or
changes of position.
6. DEFENDANT [NAME]: Documents concerning Defendant
[Name], including, but not limited to:
a. Documents concerning claims or complaints of wage and hour
violations made against Defendant [Name] by Defendants’
current or former employees;
b. Defendant [Name]’s personnel file;
c. Defendant [Name]’s job performance, including evaluation(s)
and/or performance reviews, commendations or awards, “good-
job” letters and/or memos of comment or criticism;
d. Defendant [Name]’s disciplinary history, including, but not
limited to, warning notices;
10
e. Defendant [Name]’s salary, raises, bonuses and fringe benefits;
and
f. Defendant [Name]’s demotions, promotions, transfers and/or
changes of position.
7. TRAINING: All documents concerning equal employment
opportunity, discrimination and harassment training (whether conducted by video, live or
other means) provided to Defendants [Name] and [Name], including but not limited to:
a. Attendance sheets or other documents evidencing participation
in or attendance for such training;
b. Training certificates; and
c. Training materials presented and/or disseminated to
Defendants [Name] and/or [Name].
8. POLICIES: All documents concerning Defendants’ policies,
employee handbooks, and/or human resource manuals, including, but not limited to,
those pertaining to:
a. Time and attendance;
b. Timekeeping;
c. Defendants’ payment and calculation of wages, including
wages for overtime and spread of hours;
d. Deductions from employee tips and tip collection, allocation
and distribution;
e. Defendants’ policy of only paying Plaintiffs for seven (7) hours
worked per week;
11
f. Complaint procedure(s) for reporting claims of wage and hour
violations;
g. Equal employment opportunities;
h. Discrimination and/or harassment in the workplace;
i. Complaint procedure(s) for reporting claims of discrimination
and/or harassment in the workplace;
j. Workplace attire;
k. Assessment of employee work performance;
l. Employee discipline; and
m. Employee termination.
9. TIP POLICIES: All documents concerning Defendants’ tip-
pooling and tip-out policies, including, but not limited to documents concerning:
a. those categories of workers to whom tips were distributed by
bartenders and servers (i.e., bussers, cooks, security guards,
management, etc.);
b. the amount or percentage of tips distributed to each category of
workers on a daily basis;
c. the amount or percentage by which Plaintiffs’ tips were
reduced for purported fees charged by credit card companies or
any other reason;
d. the tip-out sheets signed by each Plaintiff at the end of each
shift; and
e. all tip-out sheets generated by Defendants.
12
10. PLAINTIFFS’ RECEIPT OF POLICIES: All documents
demonstrating each Plaintiff’s receipt of Defendants’ written policies, employee
handbooks, and/or human resource manuals concerning items 8(a) through (m) and 9(a)
through (e) above.
11. DEFENDANTS’ RECEIPT OF POLICIES: All documents
demonstrating each Defendant’s receipt of Defendants’ written policies, employee
handbooks, and/or human resource manuals concerning items 8(a) through (m) and 9(a)
through (e) above.
12. NOTICES TO PLAINTIFFS: All documents demonstrating
Defendants’ oral or written notification(s) to Plaintiffs regarding the federal and state
minimum wage, tip credit and overtime laws.
13. WITNESS STATEMENTS: All documents regarding statements
made by or discussions held with any third-party or any manager or current or former
employee of Defendants (excluding documents protected by a recognized privilege
against disclosure) concerning:
a. Plaintiffs’ terms and conditions of employment;
b. Plaintiffs’ work performance;
c. Plaintiffs’ job duties;
d. Plaintiffs’ New York Labor Law claims;
e. Plaintiffs’ Fair Labor Standards Act claims;
f. Plaintiffs’ complaints to Defendants or any of Defendants’
managers or current or former employees regarding wage and
hour violations committed by Defendants;
13
g. Plaintiffs’ sexual harassment and/or discrimination claims;
h. Plaintiffs’ complaints to Defendants or any of Defendants’
managers or current or former employees regarding sexual
harassment and/or discrimination committed by Defendants; or
i. Defendants’ defenses and affirmative defenses.
14. MANAGEMENT NOTES: All diaries, notes, memoranda, log
books and/or documents regarding statements or notes made by any manager or current
or former employee of Defendants regarding:
a. Plaintiffs’ terms and conditions of employment;
b. Plaintiffs’ work performance;
c. Plaintiffs’ time and attendance;
d. Payment of wages to Plaintiffs;
e. Tip allocation;
f. Plaintiffs’ complaints to Defendants or any of Defendants’
managers or current or former employees regarding wage and
hour violations committed by Defendants; and
g. Plaintiffs’ complaints to Defendants or any of Defendants’
managers or current or former employees regarding sexual
harassment and/or discrimination committed by Defendants.
15. PLAINTIFFS’ PAY RECORDS: Each Plaintiff’s pay records
including, but not limited to, documents concerning:
a. each Plaintiff’s regular rate of pay for each week Plaintiff
worked;
14
b. each Plaintiff’s overtime rate of pay for each week in which
Plaintiff worked overtime for Defendants;
c. total weekly straight-time (all hours worked up to 40 per week)
wages due to each Plaintiff for each week Plaintiff worked;
d. total weekly wages due to each Plaintiff for overtime hours (all
hours worked in excess of 40 per week) Plaintiff worked each
week;
e. any additions to or deductions from each Plaintiff’s wages for
each pay period, including the amounts and reasons thereof;
f. the manner and method by which wages were paid to each
Plaintiff each pay period, including cash, check or any other
means;
g. the date of each payment made to each Plaintiff and the pay
period covered by each payment;
h. each Plaintiff’s cash and credit card tips for each day worked;
and
i. percentage and/or amount of money deducted from each
Plaintiff’s cash and/or credit card tips each day Plaintiff
worked for distribution to other employees and/or
management, to cover purported charges by credit card
companies or for any other reason.
16. PLAINTIFFS’ TIME AND ATTENDANCE: Each Plaintiff’s time
and attendance records for her employment with Defendants, including, but not limited
15
to:
a. time sheets, time cards, sign-in sheets, schedules and
documents regarding the time Plaintiff was scheduled to work
each week;
b. records demonstrating the time of Plaintiff’s arrival to and
departure from work each day;
c. records demonstrating all breaks taken by Plaintiff on a daily
basis for meals or any other reason;
d. documents demonstrating the total number of hours Plaintiff
worked each workweek;
e. Plaintiff’s leave of absences from work, if any, for sickness,
vacation or personal time; and
f. the time of day and day of week on which Plaintiff’s workweek
began.
17. RESTAURANT SALES: All documents concerning the daily
revenue generated by Defendant [Name] at [Company Name] including, but not limited
to:
a. Daily lunch sales;
b. Daily dinner sales;
c. Daily revenue generated from private functions and/or private
parties; and
d. Daily revenue generated from promotional events.
18. PRIVATE PARTIES: All documents concerning private functions,
16
private parties and/or promotional events catered by [Company Name], whether held on
Defendant [Name] premises or off-site, including, but not limited to:
a. Private party, pre-fixe and/or promotional event menu(s);
b. Policies regarding the retention of gratuities by Defendant
[Name] from private functions, private parties and/or
promotional events;
c. Policies regarding the allocation of gratuities to private
function, private party and/or promotional event staff;
d. Policies regarding the wages paid to private function, private
party and/or promotional event staff;
e. The amount of gratuities retained by Defendant [Name] for
each private function, private party and/or promotional event;
f. The amount of gratuities paid to private function, private party
and/or promotional event staff for each event; and
g. The amount of wages paid to private function, private party
and/or promotional event staff for each event.
19. DOL AUDITS: All documents concerning audits or investigations
of Defendants’ payroll practices conducted by the United States Department of Labor and
New York State Department of Labor.
20. WAGE AND HOUR COMPLAINTS: All documents concerning
formal or informal complaints made by Plaintiffs or current or former employees
regarding Defendants’ wage and hour violations. Include, but do not limit your
submission to, complaints filed with the New York State Department of Labor; the
17
United States Department of Labor; any law enforcement authority or court system; any
governmental agency and/or forum; any person employed and/or designated by
Defendants to perform work of a human resources capacity; any person employed and/or
designated by Defendants to investigate and/or receive verbal and/or written complaints
of wage and hour violations; and any person employed by Defendants in a supervisory
and/or managerial capacity.
21. INVESTIGATION OF WAGE AND HOUR COMPLAINTS: All
documents concerning any investigation made by Defendants of formal or informal
complaints (as defined in Request No. 20 above) regarding Defendants’ wage and hour
violations.
22. SEXUAL HARASSMENT/DISCRIMINATION CLAIMS: All
documents concerning formal or informal complaints made by Plaintiffs or current or
former employees regarding Defendants’ sexual harassment and/or gender
discrimination. Include, but do not limit your submission to, complaints filed with the
United States Equal Employment Opportunity Commission; the New York State Division
of Human Rights; the New York City Commission on Human Rights; any law
enforcement authority or court system; any governmental agency and/or forum; any
person employed and/or designated by Defendants to perform work of a human resources
capacity; any person employed and/or designated by Defendants to investigate and/or
receive verbal and/or written complaints of harassment and/or discrimination; and any
person employed by Defendants in a supervisory and/or managerial capacity.
23. INVESTIGATION OF SEXUAL HARASSMENT AND/OR
DISCRIMINATION CLAIMS: All documents concerning any investigation made by
18
Defendants of formal or informal complaints (as defined in Request No. 22 above)
regarding Defendants’ sexual harassment and/or gender discrimination.
24. DEFENDANTS’ DEFENSES/AFFIRMATIVE DEFENSES: All
documents concerning Defendants’ defenses and/or affirmative defenses, including, but
not limited to documents concerning:
a. Each Plaintiff’s alleged violation(s) of Defendants’
timekeeping and recordkeeping policies, including falsification
of time records, as alleged in the Sixth Affirmative Defense of
Defendant [Name]’s Answer to Plaintiffs’ Amended
Complaint;
b. The administrative regulation, order, ruling, approval,
interpretation, administrative practice, and/or enforcement
policy of the United States Department of Labor upon which
Defendants purportedly relied on in good faith in paying wages
to Plaintiffs, as alleged in the Thirteenth Affirmative Defense
of Defendant [Name]’s Answer to Plaintiffs’ Amended
Complaint and Defendant [Name]’s Answer to Plaintiffs’
Amended Complaint and the Twelfth Affirmative Defense of
Defendant [Name]’s Answer to Plaintiffs’ Amended
Complaint;
c. Any releases(s) and/or waiver(s) referred to in the Fifteenth
Affirmative Defense of Defendant [Name]’s Answer to
Plaintiffs’ Amended Complaint and Defendant [Name]’s
19
Answer to Plaintiffs’ Amended Complaint and the Fourteenth
Affirmative Defense of Defendant [Name]’s Answer to
Plaintiffs’ Amended Complaint;
d. Any acts of misconduct in which any Plaintiff engaged prior to
or during her employment with Defendants, as alleged in the
Twenty-Third Affirmative Defense of Defendant [Name]’s
Answer to Plaintiffs’ Amended Complaint and Defendant
[Name]’s Answer to Plaintiffs’ Amended Complaint;
e. The reasonable care exercised by Defendants to prevent and
correct promptly any harassing behavior or other
discriminatory or retaliatory conduct, as alleged in the Twenty-
Fifth Affirmative Defense of Defendant [Name]’s Answer to
Plaintiffs’ Amended Complaint and Defendant [Name]’s
Answer to Plaintiffs’ Amended Complaint;
f. Plaintiffs’ unreasonable failure to take advantage of
preventative or corrective opportunities provided by
Defendants or to otherwise avoid harm, as alleged in the
Twenty-Fifth Affirmative Defense of Defendant [Name]’s
Answer to Plaintiffs’ Amended Complaint and Defendant
[Name]’s Answer to Plaintiffs’ Amended Complaint;
g. Plaintiffs’ failure to fulfill or exhaust administrative or
jurisdictional prerequisites to suit, as alleged in the Twenty-
Sixth Affirmative Defense of [Name]’s Answer to Plaintiffs’
20
Amended Complaint and [Name]’s Answer to Plaintiffs’
Amended Complaint; and
h. Defendants’ reasonable steps taken to prevent unlawful
discrimination, harassment and retaliation and immediate and
appropriate remedial measures taken in response to Plaintiffs’
complaints of unlawful discrimination, harassment and
retaliation, as alleged in the Twenty-Ninth Affirmative Defense
of Defendant [Name]’s Answer to Plaintiffs’ Amended
Complaint and Defendant [Name]’s Answer to Plaintiffs’
Amended Complaint.
25. EXPERTS: For each lay and expert witness whom Defendants
expect to call at trial, all documents reviewed or relied upon to support such expert’s
report or opinion.
26. INSURANCE POLICIES: All documents concerning any
insurance policies that may cover Defendants’ liability for sexual harassment,
discrimination and/or wage and hour violations in the workplace.
27. OTHER DOCUMENTS: All other documents not previously
requested that are relevant to the subject matter of this litigation.
21
Respectfully submitted,
SERRINS FISHER LLP 233 Broadway, Suite 2340 New York, New York 10279 (212) 571-0700
Dated: May 7, 2014 By: ________________________ New York, New York Alan Serrins (AS ****)
ATTORNEYS FOR PLAINTIFFS
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK [PLAINTIFFS’ NAMES], individually and on behalf of others similarly situated,
Plaintiffs,
-against- [DEFENDANTS’ NAMES],
Defendants.
Case No.:
PLAINTIFFS’ FIRST REQUEST FOR DOCUMENTS TO DEFENDANTS
To: OPPOSING COUNSEL
PLEASE TAKE NOTICE THAT, pursuant to Rules 26 and 34 of the Federal
Rules of Civil Procedure and Rule 26.3 of the Local Civil Rules of the Southern District
of New York, Plaintiffs _____________ (“Plaintiff Name,”) __________ (“Plaintiff
Name,”) and __________ (“Plaintiff Name”) (collectively “Plaintiffs,”) by and through
their attorneys, Serrins Fisher LLP, hereby demand the items enumerated herein be
produced by Defendants ________________ (“Defendant Name”) ____________
(“Defendant Name”) and _________________ (“Defendant Name”) (collectively
“Defendants”) in accordance with the definitions and instructions stated herein, within
thirty (30) days of service hereof, at Serrins Fisher LLP, 233 Broadway, Suite 2340, New
York, New York 10279, and that Serrins Fisher LLP, as attorneys for Plaintiffs, be
permitted to discover, inspect, test, photocopy, and/or photograph all items produced by
Defendants pursuant to this notice.
2
A. All definitions and rules of construction set forth in both Rule 34 of the
Federal Rules of Civil Procedure and the Local Civil Rules of the Southern District of
New York shall apply to the Requests herein.
DEFINITIONS AND INSTRUCTIONS
B. “Plaintiffs” refers collectively to [PLAINTIFFS’ NAMES], and each of
them, and shall include their agents, attorneys and representatives.
C. “Defendants” refers collectively to [DEFENDANTS’ NAMES], and each
of them, and shall include their officers, directors, employees, partners, corporate parent,
subsidiaries or affiliates.
D. “Person” is defined as any natural person or any legal entity, including,
without limitation, any business or governmental entity or association.
E. “Documents” include any designated documents or electronically stored
information – including writings, drawings, graphs, charts, photographs, sound
recordings, images and other data or data compilations – stored in any medium from
which information can be obtained either directly or, if necessary, after translation by the
responding party into a reasonably usable form. This includes all documents for which
privilege is claimed. If copies, reproductions or facsimiles of a document are not
identical by reason of handwritten notations, initials, identification marks or any other
modification, each such non-identical copy is a separate document within the meaning of
this definition.
F. “Communication” is defined as the transmittal of information (in the form
of facts, ideas, inquiries or otherwise).
G. “Date” means the exact day, month, and year, if ascertainable, or, if not,
3
Defendants’ best approximation thereof.
H. “Concerning” means relating to, referring to, describing, evidencing or
constituting.
I. “And”/”Or” shall be construed either disjunctively or conjunctively as
necessary to bring within the scope of the discovery request all responses that might
otherwise be construed to be outside of its scope.
J. “All”/”Any”/”Each” shall each be construed as encompassing any and all.
K. The use of the singular form of any word includes the plural and vice
versa.
L. The term “identify” means:
(i) when used with respect to a person
(a) the person’s full name; and
, to give, to the extent known:
(b) present or last known address.
(ii) when used with respect to a natural person
(a) the person’s full name;
, to give, to the extent
known:
(b) present or last known address; and
(c) present or last known place of employment.
(iii) when used with respect to a business, legal or governmental entity
or association
(a) the business, legal or governmental entity or association’s
legal name;
, to give, to the extent known:
(b) the location of the business, legal or governmental entity or
4
association’s principal place of operation and main
telephone number; and
(c) the business, legal or governmental entity or association’s
owner(s).
(iv) when used with respect to a document
(a) the type of document;
as defined herein, to give, to
the extent known:
(b) general subject matter;
(c) date of the document; and
(d) author(s), addressee(s) and recipient(s).
(v) when used with reference to a communication
(a) the date when and place where such communication
occurred;
, to state:
(b) the means of communication (e.g., telephone, writings,
correspondence, personal conversations, meetings, etc.);
(c) the identity of the participants and witnesses; and
(d) the substantive information communicated.
M. 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.
N. When responding to the following Requests please specify which
documents are responsive to each Request and, where appropriate, to each sub-part
thereof.
5
O. Should Defendants assert a claim of privilege or work product for any
communications or documents about which information or inspection is requested, and a
complete answer is not provided on the basis of such assertion, identify the nature of the
privilege being claimed and provide the following information without causing disclosure
of the allegedly privileged information:
(i) a brief description of the subject matter of the document or
communication;
(ii) date of the document or communication;
(iii) recipient(s) of the document or communication; and
(iv) the grounds on which the claim of privilege or work product rests.
P. In the context of a Request or a response thereto, whenever necessary to
bring within the scope of the Request information that would otherwise be excluded
therefrom, the singular shall mean plural, and the masculine gender shall mean the
feminine, and vice versa.
Q. If you object to any portion of a Request, provide information as to those
portions of the Request to which you do not object. For those portions of any Request to
which you object, state in detail the reason for such objection.
R. If you cannot answer any of the following Requests in full after exercising
due diligence, so state and answer the Request to the fullest extent possible, specifying
your inability to answer the remainder and stating whatever information or knowledge
you have concerning the unanswered portions.
S. Each Request not only calls for information known to Defendants, but also
calls for all information available to Defendants through reasonable inquiry, including
6
inquiry of Defendants’ respective representatives and agents.
T. The relevant time period, unless otherwise stated, shall be from the time
[Company Name] opened to present, and shall include all documents and information
which relate in whole or in part to such period, or to events or circumstances during such
period.
U. These Requests are of a continuing nature. If after service of Defendants’
response, Defendants obtain additional information responsive thereto, they shall
promptly supplement or amend their response in accordance with Rule 26(e) of the
Federal Rules of Civil Procedure.
7
DOCUMENT REQUESTS
1. PLAINTIFFS’ PERSONNEL DOCUMENTS: Each Plaintiff’s
personnel file and all other documents regarding each Plaintiff’s employment with
Defendants, including, but not limited to, documents concerning:
a. Each Plaintiff’s application for employment;
b. Defendants’ job interview of each Plaintiff, if any, before she
was hired;
c. Defendants’ offer of a job to each Plaintiff;
d. Each Plaintiff’s acceptance of employment with Defendant
[Name];
e. The terms and conditions of each Plaintiff’s employment;
f. Each Plaintiff’s job performance, including evaluation(s)
and/or performance reviews; commendations or awards;
“good-job” letters; and memos of comment or criticism;
g. Each Plaintiff’s disciplinary history, including, but not limited
to, warning notices, if any;
h. Each Plaintiff’s salaries, raises, bonuses and fringe benefits;
i. Complaints regarding each Plaintiff or her work performance
and any warning notices issued to each Plaintiff regarding such
complaints;
j. Each Plaintiff’s demotions, promotions, transfers and/or
changes of position, if any;
k. Each Plaintiff’s IRS Form(s) W-4;
8
l. Each Plaintiff’s IRS Form(s) W-2 for each year worked since
2008;
m. Any alleged contracts or agreements entered into between each
Plaintiff and Defendants; and
n. Each Plaintiff’s cessation of employment with Defendants.
2. REPLACEMENT EMPLOYEES
3.
: All documents concerning the
interview, selection, hiring and terms and conditions of employment of the individual
who replaced each Plaintiff with Defendant [Name].
ORGANIZATIONAL CHARTS
4.
: All organizational charts or
documents demonstrating the reporting structure for each Plaintiff (i.e., to whom Plaintiff
reported) during her employment with Defendants.
JOB DESCRIPTIONS
a. Defendant _________;
: Job descriptions for:
b. Defendant _________;
c. ______________; and
d. Each Plaintiff.
5. DEFENDANT [NAME]
a. Documents concerning claims or complaints of wage and hour
violations made against Defendant [Name] by Defendants’
current or former employees;
: Documents concerning Defendant
[Name], including, but not limited to:
b. Documents concerning claims or complaints of discrimination
and/or harassment made against Defendant [Name] by
9
Defendants’ current or former employees from January 2008 to
present;
c. Defendant [Name]’s personnel file;
d. Defendant [Name]’s job performance, including evaluation(s)
and/or performance reviews, commendations or awards, “good-
job” letters and/or memos of comment or criticism;
e. Defendant [Name]’s disciplinary history, including, but not
limited to, warning notices;
f. Defendant [Name]’s salary, raises, bonuses and fringe benefits;
and
g. Defendant [Name]’s demotions, promotions, transfers and/or
changes of position.
6. DEFENDANT [NAME]
a. Documents concerning claims or complaints of wage and hour
violations made against Defendant [Name] by Defendants’
current or former employees;
: Documents concerning Defendant
[Name], including, but not limited to:
b. Defendant [Name]’s personnel file;
c. Defendant [Name]’s job performance, including evaluation(s)
and/or performance reviews, commendations or awards, “good-
job” letters and/or memos of comment or criticism;
d. Defendant [Name]’s disciplinary history, including, but not
limited to, warning notices;
10
e. Defendant [Name]’s salary, raises, bonuses and fringe benefits;
and
f. Defendant [Name]’s demotions, promotions, transfers and/or
changes of position.
7. TRAINING
a. Attendance sheets or other documents evidencing participation
in or attendance for such training;
: All documents concerning equal employment
opportunity, discrimination and harassment training (whether conducted by video, live or
other means) provided to Defendants [Name] and [Name], including but not limited to:
b. Training certificates; and
c. Training materials presented and/or disseminated to
Defendants [Name] and/or [Name].
8. POLICIES
a. Time and attendance;
: All documents concerning Defendants’ policies,
employee handbooks, and/or human resource manuals, including, but not limited to,
those pertaining to:
b. Timekeeping;
c. Defendants’ payment and calculation of wages, including
wages for overtime and spread of hours;
d. Deductions from employee tips and tip collection, allocation
and distribution;
e. Defendants’ policy of only paying Plaintiffs for seven (7) hours
worked per week;
11
f. Complaint procedure(s) for reporting claims of wage and hour
violations;
g. Equal employment opportunities;
h. Discrimination and/or harassment in the workplace;
i. Complaint procedure(s) for reporting claims of discrimination
and/or harassment in the workplace;
j. Workplace attire;
k. Assessment of employee work performance;
l. Employee discipline; and
m. Employee termination.
9. TIP POLICIES
a. those categories of workers to whom tips were distributed by
bartenders and servers (i.e., bussers, cooks, security guards,
management, etc.);
: All documents concerning Defendants’ tip-
pooling and tip-out policies, including, but not limited to documents concerning:
b. the amount or percentage of tips distributed to each category of
workers on a daily basis;
c. the amount or percentage by which Plaintiffs’ tips were
reduced for purported fees charged by credit card companies or
any other reason;
d. the tip-out sheets signed by each Plaintiff at the end of each
shift; and
e. all tip-out sheets generated by Defendants.
12
10. PLAINTIFFS’ RECEIPT OF POLICIES
11.
: All documents
demonstrating each Plaintiff’s receipt of Defendants’ written policies, employee
handbooks, and/or human resource manuals concerning items 8(a) through (m) and 9(a)
through (e) above.
DEFENDANTS’ RECEIPT OF POLICIES
12.
: All documents
demonstrating each Defendant’s receipt of Defendants’ written policies, employee
handbooks, and/or human resource manuals concerning items 8(a) through (m) and 9(a)
through (e) above.
NOTICES TO PLAINTIFFS
13. WITNESS STATEMENTS: All documents regarding statements
made by or discussions held with any third-party or any manager or current or former
employee of Defendants (excluding documents protected by a recognized privilege
against disclosure) concerning:
: All documents demonstrating
Defendants’ oral or written notification(s) to Plaintiffs regarding the federal and state
minimum wage, tip credit and overtime laws.
a. Plaintiffs’ terms and conditions of employment;
b. Plaintiffs’ work performance;
c. Plaintiffs’ job duties;
d. Plaintiffs’ New York Labor Law claims;
e. Plaintiffs’ Fair Labor Standards Act claims;
f. Plaintiffs’ complaints to Defendants or any of Defendants’
managers or current or former employees regarding wage and
hour violations committed by Defendants;
13
g. Plaintiffs’ sexual harassment and/or discrimination claims;
h. Plaintiffs’ complaints to Defendants or any of Defendants’
managers or current or former employees regarding sexual
harassment and/or discrimination committed by Defendants; or
i. Defendants’ defenses and affirmative defenses.
14. MANAGEMENT NOTES
a. Plaintiffs’ terms and conditions of employment;
: All diaries, notes, memoranda, log
books and/or documents regarding statements or notes made by any manager or current
or former employee of Defendants regarding:
b. Plaintiffs’ work performance;
c. Plaintiffs’ time and attendance;
d. Payment of wages to Plaintiffs;
e. Tip allocation;
f. Plaintiffs’ complaints to Defendants or any of Defendants’
managers or current or former employees regarding wage and
hour violations committed by Defendants; and
g. Plaintiffs’ complaints to Defendants or any of Defendants’
managers or current or former employees regarding sexual
harassment and/or discrimination committed by Defendants.
15. PLAINTIFFS’ PAY RECORDS
a. each Plaintiff’s regular rate of pay for each week Plaintiff
worked;
: Each Plaintiff’s pay records
including, but not limited to, documents concerning:
14
b. each Plaintiff’s overtime rate of pay for each week in which
Plaintiff worked overtime for Defendants;
c. total weekly straight-time (all hours worked up to 40 per week)
wages due to each Plaintiff for each week Plaintiff worked;
d. total weekly wages due to each Plaintiff for overtime hours (all
hours worked in excess of 40 per week) Plaintiff worked each
week;
e. any additions to or deductions from each Plaintiff’s wages for
each pay period, including the amounts and reasons thereof;
f. the manner and method by which wages were paid to each
Plaintiff each pay period, including cash, check or any other
means;
g. the date of each payment made to each Plaintiff and the pay
period covered by each payment;
h. each Plaintiff’s cash and credit card tips for each day worked;
and
i. percentage and/or amount of money deducted from each
Plaintiff’s cash and/or credit card tips each day Plaintiff
worked for distribution to other employees and/or
management, to cover purported charges by credit card
companies or for any other reason.
16. PLAINTIFFS’ TIME AND ATTENDANCE: Each Plaintiff’s time
and attendance records for her employment with Defendants, including, but not limited
15
to:
a. time sheets, time cards, sign-in sheets, schedules and
documents regarding the time Plaintiff was scheduled to work
each week;
b. records demonstrating the time of Plaintiff’s arrival to and
departure from work each day;
c. records demonstrating all breaks taken by Plaintiff on a daily
basis for meals or any other reason;
d. documents demonstrating the total number of hours Plaintiff
worked each workweek;
e. Plaintiff’s leave of absences from work, if any, for sickness,
vacation or personal time; and
f. the time of day and day of week on which Plaintiff’s workweek
began.
17. RESTAURANT SALES
a. Daily lunch sales;
: All documents concerning the daily
revenue generated by Defendant [Name] at [Company Name] including, but not limited
to:
b. Daily dinner sales;
c. Daily revenue generated from private functions and/or private
parties; and
d. Daily revenue generated from promotional events.
18. PRIVATE PARTIES: All documents concerning private functions,
16
private parties and/or promotional events catered by [Company Name], whether held on
Defendant [Name] premises or off-site, including, but not limited to:
a. Private party, pre-fixe and/or promotional event menu(s);
b. Policies regarding the retention of gratuities by Defendant
[Name] from private functions, private parties and/or
promotional events;
c. Policies regarding the allocation of gratuities to private
function, private party and/or promotional event staff;
d. Policies regarding the wages paid to private function, private
party and/or promotional event staff;
e. The amount of gratuities retained by Defendant [Name] for
each private function, private party and/or promotional event;
f. The amount of gratuities paid to private function, private party
and/or promotional event staff for each event; and
g. The amount of wages paid to private function, private party
and/or promotional event staff for each event.
19. DOL AUDITS
20.
: All documents concerning audits or investigations
of Defendants’ payroll practices conducted by the United States Department of Labor and
New York State Department of Labor.
WAGE AND HOUR COMPLAINTS: All documents concerning
formal or informal complaints made by Plaintiffs or current or former employees
regarding Defendants’ wage and hour violations. Include, but do not limit your
submission to, complaints filed with the New York State Department of Labor; the
17
United States Department of Labor; any law enforcement authority or court system; any
governmental agency and/or forum; any person employed and/or designated by
Defendants to perform work of a human resources capacity; any person employed and/or
designated by Defendants to investigate and/or receive verbal and/or written complaints
of wage and hour violations; and any person employed by Defendants in a supervisory
and/or managerial capacity.
21. INVESTIGATION OF WAGE AND HOUR COMPLAINTS: All
documents concerning any investigation
22.
made by Defendants of formal or informal
complaints (as defined in Request No. 20 above) regarding Defendants’ wage and hour
violations.
SEXUAL HARASSMENT/DISCRIMINATION CLAIMS
23.
: All
documents concerning formal or informal complaints made by Plaintiffs or current or
former employees regarding Defendants’ sexual harassment and/or gender
discrimination. Include, but do not limit your submission to, complaints filed with the
United States Equal Employment Opportunity Commission; the New York State Division
of Human Rights; the New York City Commission on Human Rights; any law
enforcement authority or court system; any governmental agency and/or forum; any
person employed and/or designated by Defendants to perform work of a human resources
capacity; any person employed and/or designated by Defendants to investigate and/or
receive verbal and/or written complaints of harassment and/or discrimination; and any
person employed by Defendants in a supervisory and/or managerial capacity.
INVESTIGATION OF SEXUAL HARASSMENT AND/OR
DISCRIMINATION CLAIMS: All documents concerning any investigation made by
18
Defendants of formal or informal complaints (as defined in Request No. 22 above)
regarding Defendants’ sexual harassment and/or gender discrimination.
24. DEFENDANTS’ DEFENSES/AFFIRMATIVE DEFENSES
a. Each Plaintiff’s alleged violation(s) of Defendants’
timekeeping and recordkeeping policies, including falsification
of time records, as alleged in the Sixth Affirmative Defense of
Defendant [Name]’s Answer to Plaintiffs’ Amended
Complaint;
: All
documents concerning Defendants’ defenses and/or affirmative defenses, including, but
not limited to documents concerning:
b. The administrative regulation, order, ruling, approval,
interpretation, administrative practice, and/or enforcement
policy of the United States Department of Labor upon which
Defendants purportedly relied on in good faith in paying wages
to Plaintiffs, as alleged in the Thirteenth Affirmative Defense
of Defendant [Name]’s Answer to Plaintiffs’ Amended
Complaint and Defendant [Name]’s Answer to Plaintiffs’
Amended Complaint and the Twelfth Affirmative Defense of
Defendant [Name]’s Answer to Plaintiffs’ Amended
Complaint;
c. Any releases(s) and/or waiver(s) referred to in the Fifteenth
Affirmative Defense of Defendant [Name]’s Answer to
Plaintiffs’ Amended Complaint and Defendant [Name]’s
19
Answer to Plaintiffs’ Amended Complaint and the Fourteenth
Affirmative Defense of Defendant [Name]’s Answer to
Plaintiffs’ Amended Complaint;
d. Any acts of misconduct in which any Plaintiff engaged prior to
or during her employment with Defendants, as alleged in the
Twenty-Third Affirmative Defense of Defendant [Name]’s
Answer to Plaintiffs’ Amended Complaint and Defendant
[Name]’s Answer to Plaintiffs’ Amended Complaint;
e. The reasonable care exercised by Defendants to prevent and
correct promptly any harassing behavior or other
discriminatory or retaliatory conduct, as alleged in the Twenty-
Fifth Affirmative Defense of Defendant [Name]’s Answer to
Plaintiffs’ Amended Complaint and Defendant [Name]’s
Answer to Plaintiffs’ Amended Complaint;
f. Plaintiffs’ unreasonable failure to take advantage of
preventative or corrective opportunities provided by
Defendants or to otherwise avoid harm, as alleged in the
Twenty-Fifth Affirmative Defense of Defendant [Name]’s
Answer to Plaintiffs’ Amended Complaint and Defendant
[Name]’s Answer to Plaintiffs’ Amended Complaint;
g. Plaintiffs’ failure to fulfill or exhaust administrative or
jurisdictional prerequisites to suit, as alleged in the Twenty-
Sixth Affirmative Defense of [Name]’s Answer to Plaintiffs’
20
Amended Complaint and [Name]’s Answer to Plaintiffs’
Amended Complaint; and
h. Defendants’ reasonable steps taken to prevent unlawful
discrimination, harassment and retaliation and immediate and
appropriate remedial measures taken in response to Plaintiffs’
complaints of unlawful discrimination, harassment and
retaliation, as alleged in the Twenty-Ninth Affirmative Defense
of Defendant [Name]’s Answer to Plaintiffs’ Amended
Complaint and Defendant [Name]’s Answer to Plaintiffs’
Amended Complaint.
25. EXPERTS
26.
: For each lay and expert witness whom Defendants
expect to call at trial, all documents reviewed or relied upon to support such expert’s
report or opinion.
INSURANCE POLICIES
27.
: All documents concerning any
insurance policies that may cover Defendants’ liability for sexual harassment,
discrimination and/or wage and hour violations in the workplace.
OTHER DOCUMENTS
: All other documents not previously
requested that are relevant to the subject matter of this litigation.
21
Respectfully submitted,
SERRINS FISHER LLP 233 Broadway, Suite 2340 New York, New York 10279 (212) 571-0700
Dated: May 7, 2014 By: ________________________ New York, New York Alan Serrins (AS ****)
ATTORNEYS FOR PLAINTIFFS
900200.00001/7375244v.1
DISCOVERY ISSUES FOR
NEW YORK EMPLOYERS IN
EMPLOYMENT DISCRIMINATION
DISPUTES
(May 12, 2014)
Stephen E. Tisman, Esq.Valerie D. Ringel, Esq.Blank Rome LLPThe Chrysler Building405 Lexington AvenueNew York, NY 10174-0208
900200.00001/7375244v.1
I. Introduction
Counsel for an employer sued for employment discrimination knows that the client likely faces a costly and disruptive stretch of pretrial discovery before the case is resolved on motion for summary judgment or by settlement or at trial. In addition to the usual tasks faced by counsel for the defendant in litigation in state or federal court in New York – identifying witnesses, tying down the facts, gathering and preserving all of the relevant documents and materials, electronic and paper, developing defenses, priming for cross-examination – discrimination cases pose a host of issues and considerations which differ in substance or degree from those typically dealt with in other commercial litigations.
First, discovery proceeds not only with the usual judicial predisposition toward liberal disclosure, but “courts typically apply more “liberal civil discovery rules” in employment discrimination cases, giving plaintiffs “broad access to employers’ records in an effort to document their claims.” Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 557, 562 (S.D.N.Y. 2013) quoting Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989), superseded by statute on other grounds, Civil Rights Act of 1991, Pub.L. No. 102–166, 105 Stat. 1074.
Second, because the nature of proof in discrimination cases usually involves the treatment or conduct of individuals, the plaintiff, co-workers and managers, the evidence typically raises issues of confidentiality and privacy. This is particularly so in a disability discrimination or harassment lawsuit.
Third, in those cases where damages are sought for emotional distress, there are often litigation issues over efforts to obtain medical records, and mental (psychological or psychiatric) examinations, and discovery from individuals providing mental health treatment or counseling to the plaintiff.
Fourth, whether or not the plaintiff mitigated damages is almost always in play, frequently resulting in arguments over production of tax returns and third-party discovery from the plaintiff’s subsequent employers.
Finally, discrimination cases embrace the concept of “after acquired evidence” to defeat claims for reinstatement or to limit or abate claims for money damages, leading to disputes over the need (and foundation) for discovery regarding conduct before the incident leading to the lawsuit, and even before the plaintiff ever was hired.
This outline, while covering the general areas that an employer’s counsel may encounter in the discovery phase of the case, places special focus on the topics that come up in discrimination cases more often than other types of case. Where possible, we have gathered New York state and Second Circuit cases.
II. Preservation of Evidence
A. Before a lawsuit is even filed, there is a duty to preserve evidence once litigation is “reasonably anticipated.”
B. Make sure client takes steps to preserve all relevant documents, physical evidence and electronically stored information (“ESI”), including sending out a litigation hold to the relevant players at the client.
2900200.00001/7375244v.1
C. Better to be safe than sorry. If in doubt whether a claim or litigation may be filed, take steps to preserve evidence. In-house counsel and Human Resources executives should be alert to this and, if appropriate, take such steps even before outside counsel is consulted.
D. Review with client what steps are being taken and who is included on the distribution list. This may include identifying where relevant information may be located, identifying the relevant individuals involved in the matter, the types of information, documents and things that may be relevant or responsive to a discovery request, and the relevant time period during which such documents might have been created. Periodically reissue litigation hold.
E. Need to ensure that routine document destruction policies and any auto-delete features of email systems are suspended for relevant areas and players. Again, if in doubt, preserve it.
F. Also need to preserve and segregate readily accessible back-up data, and even inaccessible back-up data (e.g. back-up tapes) for “key players.”
G. You should also send a “preservation letter” to plaintiff’s counsel reminding him or her about plaintiff’s duty to preserve evidence.
H. Note that reliance on client-in-house counsel is not sufficient. See Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) (holding that it is not sufficient to notify all employees of a litigation hold and expect that the party will then retain and produce all the relevant information; counsel must take affirmative steps to monitor compliance).
I. Consider impounding or imaging of hard drives on computers used by plaintiff, for later review.
III. Anticipating ESI Issues
A. Once litigation is anticipated you should:
1. Become familiar with the operation and administration of the client’s systems, including your client’s retention policies
2. Identify sources of ESI
3. Identify potential custodians
4. Oversee litigation hold efforts
5. Communicate with client and/or its IT department to define the IT Department’s role in the discovery process
B. Potential Sources of ESI include not only active computer files such as word processing documents, databases, and spreadsheets, but also e-mail, software, digital pictures, text and instant messages.
3900200.00001/7375244v.1
1. Electronic data may be stored on workplace computer hard drives, personal computer hard drives, diskettes, compact discs, cloud storage, USB drives and back-up drives as well as on portable media such as Blackberries, tablets, and cell phones. Furthermore, copies of electronic documents may reside on backup servers, backup tapes, third-party service servers, or buffer memory on fax machines, printers, and digital copiers. In addition, electronic information may be “hidden” as metadata and other information automatically gathered on a computer, “deleted” documents that are still recoverable, and on web-site log files.
2. Some categories of ESI:
a. Active Data Files;
b. E-mail, Instant Messages, Text Messages;
c. Backup Data on tapes and other storage media;
d. Legacy Data;
e. Replicant/Archival Data;
f. Metadata, Embedded Data, and Audit Trails;
g. Residual (“Deleted”) Data; and
h. Social Media Data.
C. Don’t overlook where a relevant individual’s information and documents may be stored, including his or her desk or locally maintained files, office computer, network folders, home or laptop computers, handheld devices, internet based or cloud storage, informal back-up disks or drives, or secretary/assistant’s electronic file and emails.
IV. Pre-Discovery Research
A. FOIA/FOIL requests
1. If the plaintiff has filed a discrimination claim with the Equal Employment Opportunity Commission (EEOC), the New York State Division of Human Rights (NYSDHR) or the New York City Commission on Human Rights (NYCCHR), you should send out a Freedom of Information Act request to the EEOC or Freedom of Information Law request to the NYSDHR or the NYCCHR. While some records may be withheld as being exempt from such disclosure, for the cost of copying you may find something interesting.
B. Public Sources
4900200.00001/7375244v.1
1. Search the Internet and publically available Social Media for information about the plaintiff.
2. Also search court records in the county or district where the plaintiff resides for prior actions brought by the plaintiff.
a. Lawsuits against prior employers.
b. Personal bankruptcy filings.
V. Initial Disclosures (Federal Court, Fed. R. Civ. P. Rule 26) 1
A. Provide the name, address and phone number of each individual that you may use to support your defense (or counterclaim), unless solely being used for impeachment. Fed. R. Civ. P. 26(a)(1)(A)(i).
B. You must also include a copy of or a description by category and location of all documents and ESI. Fed. R. Civ. P. 26(a)(1)(A)(ii).
C. If a counterclaim has been asserted by the employer, provide a computation of each category of damages. Fed. R. Civ. P. 26 (a)(i)(A)(iii).
D. If relevant, provide a copy of any insurance policy or agreement that may be used to satisfy, indemnify or reimburse any potential judgment. Fed. R. Civ. P. 26(a)(1)(A)(iii)(iv).
E. Discovery Protocols for Employment Cases Alleging Adverse Actions
1. In November 2011, the U.S. Judicial Conference’s Advisory Committee on Civil Rules (Advisory Committee) adopted the Initial Discovery Protocols for Employment Cases Alleging Adverse Actions (Protocols), which individual judges across the country are pilot testing. As described in the Protocols, “[t]hey are intended to supersede the parties’ obligations to make initial disclosures pursuant to Fed. R. Civ. Proc. 26(a)(1).”
2. The resulting Protocols create a new category of information exchange, replacing initial disclosures with initial discovery specific to employment cases alleging adverse action. This discovery is provided automatically by both sides within 30 days of the defendant’s responsive pleading or motion.
3. The Protocols apply to all employment cases that challenge one or more actions alleged to be adverse, except class actions2 and cases in which the allegations involve only the following:
1 Note that the Judicial Conference Advisory Committees on Bankruptcy and Civil Rules have proposed amendments to Rule 26(b)(1) and 26(c) to promote proportionality in discovery. If approved, they will take effect December 1, 2015.
5900200.00001/7375244v.1
a. Discrimination in hiring;
b. Harassment/hostile work environment;
c. Violations of wage and hour laws under the Fair Labor Standards Act (FLSA);
d. Failure to provide reasonable accommodations under the Americans with Disabilities Act (ADA);
e. Violations of the Family Medical Leave Act (FMLA);
f. Violations of the Employee Retirement Income Security Act (ERISA).
4. Check the individual rules for the Judge assigned to your case to see if heor she is participating.
5. A copy of the Protocols is attached as Appendix A.
VI. Methods of Discovery
A. General Considerations
1. Check forum rules with respect to scope and number of requests. (Fed. R. Civ. P. 33 limits interrogatories to 25, including discrete subparts; S.D.N.Y. Local Rule 33.3 bars contention interrogatories until conclusion of discovery; Fed. R. Civ. P. 30(d) generally limits deposition to 1 day of 7 hours).
2. Also check Judge’s individual rules. Both State and Federal Judges may have rules addressing discovery issues.
3. Consider an appropriate time frame for the discovery you seek.
4. Be careful what you ask for. Ask your adversary for too much and the plaintiff may turn around and serve the same over-broad request on your client. Remember your client, as the employer, has a great deal more information than a typical plaintiff. If at all possible avoid asking for information you are not willing to provide. Again, the plaintiff may turn around and ask your client to produce it.
5. When responding to document requests, make it clear what you are producing and what you are not. Insist that the plaintiff do so as well.
2 Note that employment class actions in the S.D.N.Y. may be subject to the Pilot Project Regarding Case Management Techniques for Complex Civil Cases in the Southern District of New York. A copy of the Standing Order for this project may be found at http://www.nysd.uscourts.gov/rules/Complex_Civil_Rules_Pilot.pdf.
6900200.00001/7375244v.1
6. Note that if the plaintiff’s claim is subject to arbitration, your discovery options may be limited. While most arbitration bodies permit document discovery, depositions may not be permitted or may be limited. Check the rules for of the governing arbitration body as soon as the arbitration has been commenced to ascertain your options and plan accordingly. Also, discovery of third parties in arbitration may be limited. For example, in a FINRA arbitration,3 only arbitrators – not attorneys for the parties - may issue a subpoena to non-parties. If a party believes that the case requires information from third parties and wants the arbitrators to issue a subpoena, the party must make a written motion for the arbitrators to do so. The arbitrators will then determine whether the subpoena should be issued and how costs will be assessed.
B. Document Requests to Plaintiff – what to ask for
1. Communications concerning the factual allegations or claims at issue in the lawsuit;
2. Diaries, journals and calendar entries maintained by the plaintiff concerning the factual allegations or claims at issue in the lawsuit, don’t overlook outlook or similar calendar entries;
3. Claims, lawsuits, administrative charges and complaints by the plaintiff in the present matter, and in any other matters that rely upon any of the same factual allegations or claims as those in the lawsuit at bar;
4. Documents relating to qualifications for the position held, if relevant, such as prior employment and education and licenses;
5. The plaintiff’s resume used to obtain the employment at issue;
6. Documents concerning the formation and/or termination of the employment relationship at issue;
7. Damages-related documents - Mitigation:
a. Job search efforts;
b. Current resume and prior versions;
c. Offer(s) of employment and details as to offered income and benefits.
d. Tax returns [discussed below]
8. Documentary evidence related to emotional distress, including medical records, prescriptions, pharmacy receipts, and social media postings [discussed below];
3 Since 2007 FINRA has excluded employment discrimination claims from mandatory arbitration.
7900200.00001/7375244v.1
9. Compensation history;
10. Documents concerning claims for unemployment benefits;
11. Documents concerning the termination of any subsequent employment;
12. Workers compensation records, if any; and
13. Any other document upon which the plaintiff relies to support his/her claims.
C. Interrogatories
1. Remember limitations in S.D.N.Y.; also effective June 2, 2014, the New York State Court Commercial Part will similarly limit the number and scope of interrogatories.
2. Even outside S.D.N.Y., may want to limit nature of information sought (at least initially) to identity of witnesses, documents and calculation of damages.
3. Even where contention or substantive interrogatories are permitted, remember that a lawyer (in most instances) will be drafting the response. It may be more advantageous to ask plaintiff at deposition.
D. Depositions
1. In addition to plaintiff, consider who else may need to be deposed, including witnesses not within your control (e.g. former employees, the plaintiff’s spouse or partner) or who may not be available for trial.
2. Consider whether you want to videotape the depositions. In addition to recording plaintiff’s deposition, will any of the witnesses be unavailable for trial making videotaping of such witnesses more desirable. Also consider the demeanor of the potential witness. Will it be more effective at trial to present testimony with video than reading from a transcript?
3. Check local and Judge’s rules on depositions. In addition to restrictions on duration, there may be rules addressing conduct of counsel during the deposition. (See, e.g., S.D.N.Y./E.D.N.Y. Local Rule 30.4; 22 NYCRR, Part 221 – Uniform Rules for the Conduct of Depositions).
4. Priority of depositions; none in Federal Court; in State Court defendant has presumptive priority.
5. Identify your goals:
a. Pure discovery;
b. Lock in testimony for trial;
8900200.00001/7375244v.1
c. Potential summary judgment motion;
d. Settlement discussions.
6. Place of employer’s deposition - “The deposition of a corporation by its agents and officers should ordinarily be taken at its principal place of business. This customary treatment is subject to modification, however, when justice requires.” Wright & Miller, 8A Fed. Prac. & Proc. Civ. § 2112 (3d ed.).
E. Requests for Admissions
1. After discovery of plaintiff has been had, consider whether admissions would help narrow the issues for trial.
2. Invaluable for authenticating documents.
F. Physical or mental examination, if appropriate [see Emotional Distress and Discovery discussed below].
G. Expert Discovery
1. Based on facts of case, consider what type of trial expert may be needed. For example, if plaintiff claims something more than garden variety emotional distress, may want an expert on mental health issues. But in a single plaintiff discrimination case, the cost of an expert may outweigh the benefit. However, if plaintiff has retained an expert, you may want to retain one to refute plaintiff’s expert.
2. Remember, in Federal Court, depositions of experts are permitted. In New York State Court, they generally are not permitted, but check the Judge’s individual rules. Some Commercial Part Judges may allow depositions of experts.
H. Discovery that may be sought by Plaintiff
1. Other complaints of discrimination made against the employer. You may be able to limit the scope:
a. Narrow the timeframe, possibly to plaintiff’s tenure. Sallis v. University of Minnesota, 408 F.3d 470 (8th Cir. 2005) (upholding narrowing of request for discovery of all departments to complaints filed no more than one year prior to actions at issue and to the department where plaintiff was employed); see Fleming v. City of New York, 233 F. Supp.2d 613 (S.D.N.Y. 2002) (limiting discovery to three years, the time frame plaintiff worked for defendant).
b. The department and/or decision-makers at issue. Cronas v. Willis Group Holdings Ltd., 2008 WL 4548861 (S.D.N.Y. Oct. 8, 2008)
9900200.00001/7375244v.1
(denying request for nationwide discovery, finding production properly limited to subsidiary which employed plaintiffs, where adverse decisions were made locally); Semple v. Federal Express Corp., 566 F.3d 788 (8th Cir. 2009) (same, limiting to local District where plaintiff was employed).
c. The type(s) of alleged conduct at issue. Walker v. Centocor Ortho Biotech, Inc., 2014 WL 631042 (3d Cir. Feb. 19, 2014) (African-American employee not entitled to discovery of complaints against her manager where documents concerned non race-related complaints); Gillum v. ICF Emergency Management Services, L.L.C., 2009 WL 2136269 (M.D. La. July 16, 2009) (limiting discovery of other complaint to age discrimination and disparate treatment, the specific type of discrimination alleged).
2. Personnel and/or disciplinary files of other employees and/or supervisors:
a. Privacy concerns can prohibit or limit the production of personnel files, especially when non-party employees are involved. SeeGavenda v. Orleans County, 182 F.R.D. 17, 29 (W.D.N.Y. 1997) (declining to compel production of personnel files of all employees where plaintiff could not establish that there would be information in the files relating to plaintiff’s claims); but see Barella v. Village of Freeport, 296 F.R.D. 102, 106 (E.D.N.Y. 2013) (permitting discovery of personnel files of 24 employees that plaintiff made an initial showing were similarly situated to him, “in part to help identify the universe of proper comparators”).
b. Consider what limitations may be permitted, including limitations on access to the production. In Barella, the court permitted the defendants to redact personal information of the employees and sealed the records and directed the plaintiff not to show them to any other person or entity. 296 F.R.D. at 106.
3. Investigation Reports - You should consider whether to assert the “self-evaluation” or “self-critical analysis” privilege to any reports summarizing any in-house investigations of plaintiff’s claims. While the Second Circuit has not specifically addressed the issue, and the District Courts within the Circuit are split on the issue (see, e.g., Zikianda v. County of Albany, 2013 WL 936446, at *3 (N.D.N.Y Mar. 8, 2013) (collecting cases)), you may get a Judge that is willing to recognize the privilege. Note however that if you wind up in State court, the courts do not appear to recognize the privilege at all. See, e.g., Uniformed Fire Officers Assn., Local 854 v. City of New York, 100 A.D.3d 546, 547, 955 N.Y.S.2d 5 (1st Dep’t 2012); Lamitie v. Emerson Elec. Co. -- White Rodgers Div., 142 A.D.2d 293-298-99, 535 N.Y.S.2d 650 (3d Dep’t 1988).
4. Statistical Data – Statistical evidence may be relevant and admissible in an individual employment discrimination case. Stanojev v. Ebasco Servs.,
10900200.00001/7375244v.1
Inc., 643 F.2d 914, 921 (2d Cir. 1981). “It is well-settled that an individual disparate treatment plaintiff may use statistical evidence regarding an employer’s general practices at the pretext stage to help rebut the employer’s purported nondiscriminatory explanation.” Hollander v. American Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990). “Evidence relating to company-wide practices may reveal patterns of discrimination against a group of employees, increasing the likelihood that an employer’s offered explanation for an employment decision regarding a particular individual masks a discriminatory motive.” Id.
VII. Third Party Discovery
A. Consider subpoenas to relevant third parties – former employers, customers, witnesses to events, former colleagues, persons identified by Plaintiff as having relevant knowledge, etc.
B. Consider getting documents and taking depositions of medical providers, psychologists, therapists, etc. [See discussion of Emotional Distress and Discovery of Medical Records following]
VIII. Particular Discovery Issues
A. Emotional Distress and Discovery of Medical Records – Federal Court
1. “[T]he Supreme Court [has] made clear that the federal courts are required to recognize that confidential communications between a licensed psychotherapist—including a licensed social worker engaged in psychotherapy—and his or her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence[.]” In re Sims, 534 F.3d 117, 130 (2d Cir. 2008) citing Jaffee v. Redmond, 518 U.S. 1, 15 (1996).4
2. Note that this privilege does not extend to “medical providers who are not psychotherapists, even if the treatment sought from the medical provider was a referral to a mental health professional or a prescription for medication to treat depression or anxiety.” E.E.O.C. v. Nichols Gas & Oil, Inc., 256 F.R.D. 114, 120 (W.D.N.Y. 2009); U.S. v. Wilson, 2012 WL 3890951, at *4 (E.D.N.Y. Sep. 7, 2012).
3. “Like other testimonial privileges, the patient may of course waive the protection.” Jaffe, 518 U.S. at 15 n. 14. If the plaintiff puts his or her emotional or mental condition at issue, then he or she may be found tohave waived the privilege. Wilson, 2012 WL 3890951 at *5.
4 Where the claims arise under Federal law, the plaintiff cannot claim protection under the New York Physician-patient privilege. Nichols Gas & Oil, Inc. 256 F.R.D. at 122; NY CPLR § 4504(a). Even if plaintiff asserts a pendent state law claim, where the evidence sought is relevant to both federal and state law claims, federal law will govern the privilege issue. von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 141 (2d Cir.), cert. denied, 481 U.S 1015 (1987); Zikianda v. County of Albany, 2013 WL 936446, at * 3 (N.D.N.Y. Mar. 8, 2013).
11900200.00001/7375244v.1
4. Psychotherapy records may not be discoverable however where a plaintiff asserts only “garden variety” emotional distress damages. In re Sims, 534 F.3d at 141-42; Koch v. Cox, 489 F.3d 384 (D.C. Cir. 2007); Tavares v. Lawrence & Mem. Hosp., 2012 WL 4321961, at *4 (D. Conn. Sep. 20, 2012); Nicholas Gas & Oil, Inc., 256 F.R.D. at 121; see Perry v. City of New Haven, 2012 WL 3887061, at *2 (D. Conn. Sep. 6, 2012) (psychotherapist-patient privilege not waived by garden variety emotional distress but finding names, dates of treatment and length of treatment was not privileged).
5. Where a plaintiff has asserted and sought recovery for severe emotional distress, a plaintiff has placed his or her mental condition at issue and it is not merely a garden variety claim. Green v. St. Vincent’s Medical Center, 252 F.R.D. 125, 129 (D. Conn. 2008) (applying Sims to find that the plaintiff’s emotional condition was at issue in case where she pursued claims for negligent and intentional infliction of emotional distress and sought recovery for “severe” emotional distress); In re Consolidated RNC Cases, 2009 WL 130178, at *7 (S.D.N.Y. Jan. 8, 2009) (causes of action alleging “severe emotional distress, emotional injuries, psychological harm, mental anguish, mental injury, embarrassment, humiliation, shock, fright, and apprehension” are not “garden variety claims”).
6. Medical records are not only needed to define and evaluate the injury claimed by the plaintiff, but to seek alternative explanations for plaintiff’s symptoms or their severity. “Ordinarily, defendants are allowed to present evidence of alternative explanations for a plaintiff’s distress, or its severity, in defense of such a claim.” Green, 252 F.R.D. at 128; Nichols Oil & Gas, Inc., 256 F.R.D. at 120.
7. Time-frame. While defense experts routinely request all medical records seeking alternative explanations for plaintiff’s symptoms, the courts may limit the time period for such records. See, e.g. Nichols Oil & Gas, Inc., 256 F.R.D. at 123 (limiting request to one year prior to and one year after employment); E.E.O.C. v. Grief Bros., 218 F.R.D. 59, 64 (W.D.N.Y. 2003)(allowing discovery of nine years of medical records due to the “lengthy and serious nature” of plaintiff’s allegations and depression and related psychological problems).
8. The fact that plaintiff does not plan to use an expert is not determinative of whether discovery will be permitted. In Bennet v. Emmerson Tool Co., the plaintiff alleged and requested emotional distress damages in connection with a fraud claim, but stated he did not intend to use an expert during trial to prove the claim. The court allowed defendant the discovery and opined that “the fact that plaintiff is not planning to present any expert testimony in support of his emotional distress claim does not make this information any less relevant.” Moreover, case law does not support the contention that this information is only discoverable only if he were planning to present expert testimony regarding his mental and emotional condition.
12900200.00001/7375244v.1
See Bennet v. Emmerson Tool Co., 2001 WL 1155301, at *1-2 (D. Kansas May 21, 2001).
B. Emotional Distress and Discovery of Medical Records – State Court
1. State courts do not appear to address or even discuss any distinction between “garden-variety” and severe emotional distress, but instead focus on whether the plaintiff placed his or her emotional or mental condition in controversy. See, e.g., Diamond v. Ross Orthopedic Group, P.C., 41 A.D.3d 768, 839 N.Y.S.2d 211, 212 (2d Dep’t 2007) (finding that the “plaintiff affirmatively placed her entire medical condition in controversy through the broad allegations of physical injury and mental anguish” and ordering the plaintiff to provide medical authorizations to the defendant); Retamozzo v. Quinones, 95 A.D.3d 652, 653, 954 N.Y.S.2d 22 (1st Dep’t 2012) (plaintiff required to provide mental health records where he placed mental an emotional state at issue); Syron v. Paolelli, 238 A.D.2d 710, 710-11, 656 N.Y.S.2d 419, 420 (3d Dep’t 1997) (plaintiff’s psychological and psychiatric records were discoverable where plaintiff claimed she suffered permanently from mental anxiety and emotional distress); Brown v. Telerep, Inc., 263 A.D.2d 378, 379, 693 N.Y.S.2d 34, 35 (1st Dep’t 1999) (plaintiff not required to produce psychiatric records where she withdrew claims for intentional infliction of emotional distress and defamation and removed affirmative interjection of her emotional or mental condition from case).
2. At least one court has recognized that under NY law, the psychologist-patient privilege is afforded greater confidentiality than the physician-patient privilege. 5 LeVien v. LaCorte, 168 Misc.2d 952, 640 N.Y.S.2d 728 (Sup. Ct. Suffolk Co. 1996) (recognizing that psychologist-patient privilege affords greater confidentiality than physician patient privilege, but found waiver where party put mental condition at issue and party acknowledged pre-incident visits to psychologist and claimed different reasons for seeking treatment).
3. Medical Authorizations. The New York Office of Court Administration has issued a form of HIPAA Authorization for use in state courts. A copy of this form is provided in Appendix B. Note that this form may not be used to obtain psychotherapy notes. An authorization for psychotherapy notes must be set forth in a separate authorization from that used for other health records. 45 C.F.R. § 164.508 (b)(3)(ii).
C. Federal Rules of Civil Procedure - Rule 35 Exams
5
CPLR §4507 places the psychologist-patient privilege on even footing with the attorney-client privilege. NY
CPLR § 4507 (“The confidential relations and communications between a psychologist … and his client are placed on the same basis as those provided by law between attorney and client”). Accordingly, “[t]o determine whether there is a waiver of the psychologist-client privilege, therefore, the Court must look to the standard to be applied to a waiver of the attorney-client privilege.” LeVien, 168 Misc. 2d at 957.
13900200.00001/7375244v.1
1. Rule 35 provides that “the court where the action is pending may order a party whose mental or physical condition—including blood group—is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.” Fed. R. Civ. P. Rule 35(a)(1).
2. “The order: (A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and (B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.” Fed. R. Civ. P. Rule 35 (a)(2).
3. A party places his or her mental or physical condition “in controversy” by claiming injury as a result of the opposing party’s conduct. Schlagenhaufv. Holder, 379 U.S. 104, 119-21 (1964).
4. A garden variety claim for emotional distress may not be enough. “Rule 35 mental examinations may be obtained where plaintiff’s allegations of emotional distress amount to more than a claim for garden variety emotional distress damages.” Grief Bros., 218 F.R.D. at 61 (internalpunctuation omitted).
5. When addressing whether the condition is in controversy, typical factors relied upon by some courts include: “1) a cause of action for intentional or negligent infliction of emotional distress; 2) an allegation of a specific mental or psychiatric injury or disorder; 3) a claim of unusually severe emotional distress; 4) plaintiff’s offer of expert testimony to support a claim of emotional distress; and/or 5) plaintiff’s concession that his or her mental condition is ‘in controversy’ within the meaning of Rule 35(a).” Jarrar v. Harris, 2008 WL 2946000, *3 (E.D.N.Y. July 25, 2008); Guzman v. News Corp., 2012 WL 2148166, at *2 (S.D.N.Y. June 13, 2012) (Rule 35 exam ordered where plaintiff alleged inter alia she “has suffered and continues to suffer, severe mental anguish and emotional distress”); Stoner v. New York City Ballet Co., 2002 WL 31875404, at *5 (S.D.N.Y. Dec. 24, 2002) (plaintiff put emotional and psychiatric status into issue by seeking damages for serious emotional distress and proffering expert witness)).
6. Some courts have suggested that the showing requires an “unusually severe emotional distress.” See, e.g., Bourne v. City of Middleton, 2012 WL 6600297, at *2. (D. Conn. Dec. 18, 2012) (but suggesting “ongoing” severe mental injury may be sufficient) citing Gattegno v. Pricewaterhouse Coopers, LLP, 204 F.R.D. 228, 231 (D. Conn. 2001). Other courts have expressly rejected such a heightened showing. Grief Bros., 218 F.R.D. at 62 (severe and serious emotional distress and depression sufficient.)
7. “[I]f a plaintiff asserts that a defendant’s actions caused a mental injury or ongoing mental illness, that plaintiff puts her mental condition clearly in controversy, and provides defendant with the good cause necessary for an
14900200.00001/7375244v.1
order under Rule 35(a) allowing a mental examination.” Guzman, 2012 WL 2148166, at *1.
8. Generally, a plaintiff’s attorney will not be permitted to attend the Rule 35 examination. Grief Bros., 218 F.R.D. at 62 (“[f]ailure to show special circumstances for the need to have an attorney or court reporter present will defeat a request for such relief”); Favale v. Roman Catholic Diocese of Bridgeport, 235 F.R.D. 553, 556 (D. Conn. 2006) (denying request to have paralegal attend exam); see also Stoner v. New York City Ballet Co., 2002 WL 31875404 at *5 (plaintiff’s expert would not be permitted to attend). Nor will plaintiff generally be permitted to record the exam. Grief Bros. Co., 218 F.R.D. at 62; Favale, 235 F.R.D. at 557 (similar to analysis of whether to permit attorney to attend).
9. Note that such an examination is much easier to take under New York law. NY CPLR § 3121 requires that a party whose physical or mental condition is “in controversy” must submit to an examination at the request of another party. Under this section, the examination can be scheduled on not less than twenty days notice. NY CPLR § 3121(a). In addition, unlike in Federal Court a party in a state court proceeding is entitled to have his or her attorney present as the examination, so long as the attorney does not duly interfere with the examination. See, e.g., Ramsey v. New York University Hosp. Center, 14 A.D.3d 349, 789 N.Y.S.2d 104, 105 (1st Dep’t 2005) (allowing plaintiff in discrimination action to have attorney present during psychiatric evaluation); Jakubowski v. Lengen, 86 A.D.2d 398, 401-02, 450 N.Y.S.2d 612, 614 (4th Dep’t 1982); see Gray v. Victory Mem. Hosp., 142 Misc.2d 302, 304, 536 N.Y.S.2d 679, 681 (Sup. Ct. Kings Co. 1989) (permitting plaintiff to have his own psychiatrist present at exam).
D. Tax Returns
1. Federal “[c]ourts have been reluctant to require disclosure of tax returns because of both the private nature of the sensitive information contained therein and the public interest in encouraging the filing by taxpayers of complete and accurate returns.” Rahman v. Smith & Wollensky Restaurant Group, Inc., 2007 WL 1521117, at * 7 (S.D.N.Y. May 24, 2007) (internal punctuation omitted) [citing Smith v. Bader, 83 F.R.D. 437, 438 (S.D.N.Y. 1979)] (allowing discovery of named plaintiff’s tax returns in discrimination class action); Michelman v. Ricoh Americas Corp., 2013 WL 664893, at *2 (E.D.N.Y. Feb. 22, 2013) (requiring plaintiff in Age discrimination action to produce redacted tax returns showing income and sources of income).
2. “Disclosure is appropriate ‘only if, on balance, the federal policy of liberal discovery outweighs the policy of maintaining the confidentiality of tax returns.’ ” Id., 2007 WL 1521117 at * 7 citing Hazeldine v. Beverage Media, Ltd., 1997 WL 362229, at *4 (S.D.N.Y. June 27, 1997).
15900200.00001/7375244v.1
3. “Accordingly, a court will order disclosure when (1) the returns are relevant to the subject matter of the action and (2) there is a compelling need for the returns because the information contained therein is not otherwise readily available.” Rahman, 2007 WL 1521117 at * 7 ((internal punctuation omitted) quoting S.E.C. v. Cymaticolor Corp., 106 F.R.D. 545, 547 (S.D.N.Y. 1985)); accord Biggs v. P&B Capital Group, 2012 WL 5499628, at *3 (W.D.N.Y. Nov. 12, 2012) (ordering plaintiff in Title VII action to produce tax returns where the information was relevant and not otherwise available).
4. “While the party seeking disclosure of the tax returns bears the burden of establishing relevance, the party resisting disclosure should bear the burden of establishing alternative sources for the information.” Rahman, 2007 WL 1521117 at * 7 quoting United States v. Bonanno Organized Crime Family of La Cosa Nostra, 119 F.R.D. 625, 627 (E.D.N.Y.1988).
5. New York law is similar although the burden on showing unavailability is on the party seeking disclosure under state law. “Because of their confidential and private nature, disclosure of tax returns is disfavored. The party seeking disclosure must make a strong showing of necessity and demonstrate that the information contained in the returns is unavailable from other sources.” Williams v. New York City Hous. Auth., 22 A.D.3d 315, 316, 802 N.Y.S.2d 5556 (1st Dep’t 2005), quoting Gordon v. Grossman, 183 A.D.2d 669, 670, 584 N.Y.S.2d 54 (1st Dep’t 1992); Ahroner v. Israel Discount Bank of New York, 14 Misc.3d 1205(A), 831 N.Y.S.2d 357 (Sup. Ct. N.Y. Co. 2005) (upholding prior order requiring disclosure of tax records showing earned income, but amending order to allow redaction of interest income).
E. Depositions of High Level Executives
1. High level executives are not immune from discovery, see, e.g., General Star Indem. Co. v. Platinum Indem. Ltd., 210 F.R.D. 80, 83 (S.D.N.Y. 2002), “even where a party asserts that the officer lacks knowledge of the issues present in the litigation.” Nature’s Plus Nordica A/S v. Natural Organics, Inc., 2012 WL 1514871, at *1 (E.D.N.Y. Apr. 30, 2012) citingConsol. Rail Corp. v. Primary Indus. Corp.,1993 WL 364471, at *1 (S.D.N.Y. Sept. 10, 1993) (“Highly-placed executives are not immune from discovery.... [A] claim that the witness lacks knowledge is subject to testing by the examining party.”).
2. “However, permitting unfettered discovery of corporate executives would threaten disruption of their business and could serve as a potent tool for harassment in litigation. Therefore, when it comes to deposing a high-ranking officer, courts have concluded that [u]nless it can be demonstrated that a corporate official has some unique knowledge of the issues in the case, it may be appropriate to preclude a[ ] deposition of a highly-placed executive while allowing other witnesses with the same knowledge to be questioned.” Nature’s Plus Nordica A/S, 2012 WL 1514871 at *2 [internal
16900200.00001/7375244v.1
punctuation and citation omitted] quoting Retail Brand Alliance, Inc. v. Factory Mut. Ins. Co., 2008 WL 622810, at *5 (S.D.N.Y. Mar. 7, 2008) (quoting Consol. Rail Corp., 1993 WL 364471, at *1); see also Harris v. Computer Assocs. Int’l, Inc., 204 F.R.D. 44, 46 (E.D.N.Y. 2001) (“Depositions of high level corporate executives may be duplicative, cumulative and burdensome where the person sought to be deposed has no personal knowledge of the events in dispute.”).
3. “The case law discussing the “unique knowledge” requirement is inconsistent concerning which side bears the burden of proof.” Fermin v. Rite Aid of New York, Inc., 2012 WL 364035, at *2 n.1 (S.D.N.Y. Feb 3, 2012) comparing, e.g., Burns v. Bank of America, 2007 WL 1589437, at *3 (S.D.N.Y. Jun. 4, 2007) (“Unless it can be demonstrated that a corporate official has ‘some unique knowledge’ of the issues in the case, ‘it may be appropriate to preclude a deposition of a[] highly-placed executive while allowing other witnesses with the same knowledge to be questioned.’”) with Louis Vuitton Malletier v. Doonev & Bourke, Inc.,2006 WL 3476735, at *12 (S.D.N.Y. Nov. 30, 2006) (“courts have agreed that if a party seeks to depose a very senior official of an adversary entity, the adversary may obtain an order vacating the deposition notice if it can demonstrate that the proposed deponent has no personal knowledge of the relevant facts and no unique knowledge of those facts.”).
4. While some courts have denied depositions of high-level executives (Nature’s Plus Nordica A/S, 2012 WL 1514871; Harris, 204 F.R.D. 44), others have merely limited the discovery sought (Retail Brand Alliance, Inc., 2008 WL 622810, at * 6 (limiting discovery to 25 written questions, including subparts, in the first instance); Fermin, 2012 WL 364035 at *2 (limiting discovery to 10 written questions to each of the four witnesses at issue in the first instance).) And of course, others have on the facts in the case allowed the deposition to proceed. See, e.g., General Star Indemnity Co., 210 F.R.D. 80.
5. The law in New York State Courts does not appear as well developed on this issue, but where the executive lacks relevant knowledge of matters in dispute and information was available from other sources, the court may prohibit the taking of the testimony. See, e.g., Nauka v. Plenum Pub. Corp., 266 A.D.2d 157, 698 N.Y.S.2d 32 (1st Dep’t 1999) (vacating notices of deposition of president of company and three directors where information sought was not in dispute and was readily obtainable from other sources); Arendt v. General Elec. Co., 270 A.D.2d 622, 704 N.Y.S.2d 346 (3d Dep’t 2000) (denying motion to depose CEO where party already took deposition of lower level managers and failed to show CEO possessed necessary and relevant information); cf. Rella v. State, 117 A.D.2d 591, 592, 498 N.Y.S.2d 63, 64 (2d Dep’t 1986) (trial subpoena to executive director of psychiatric center properly quashed where she had no personal knowledge of incident, and derived her knowledge from investigator who already testified at trial).
17900200.00001/7375244v.1
F. After Acquired Evidence
1. “The after-acquired evidence rule applies where an employer attempts to introduce evidence that was not known by the employer at the time of the employee’s termination as a post-hoc justification for the employer’s decision to discharge the employee.” Hickey v. Myers, 2013 WL 2418252, at *2 (N.D.N.Y. June 3, 2013).
2. Under the after-acquired evidence doctrine, “[o]nce an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if the information might have gone undiscovered absent the suit.” McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 362, (1995). “Where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” Id. at 362–63.
3. “[A]fter-acquired evidence is generally inadmissible to show liability in employment actions, [but] such evidence may be admitted for the limited purpose of mitigating damages.” Hickey, 2013 WL 2418252 at *3.
4. Note that the desire to look for after acquired evidence does not enable an employer to engage in a fishing expedition to look for such evidence. See, e.g., Lev v. South Nassau Communities Hosp., 2011 WL 3652282, at * 1 (E.D.N.Y. Aug. 18, 2011) (granting motion to quash subpoenas served on former employers of plaintiff where employer had no basis to suspect any prior wrongdoing, finding desire to ascertain whether or not it could assert the doctrine was insufficient); Chamberlain v. Farmington Sav. Bank, 2007 WL 2786421, at * 3 (D. Conn. Sep. 25, 2007) (holding “defendant cannot use the after-acquired evidence defense to conduct extensive discovery into the plaintiff’s prior employment records on the basis of pure speculation”); Rivera v. NIBCO, Inc., 364 F.3d 1057, 1071-72 (9th Cir. 2004) (affirming denial of request by employer to seek discovery of plaintiff’s immigration status to look for evidence of wrong doing), cert. denied, 544 U.S. 905 (2005).
5. But see Premer v. Corestaff Servs., L.P., 232 F.R.D. 692 (M.D. Fla. 2005) (limited production from former employers appropriate to support after-acquired evidence defense in view of discrepancy between plaintiff’s interrogatory responses and employment application); Graham v. Casey’s General Stores, 206 F.R.D. 251, 255–56 (S.D. Ind. 2002) (certain prior employment records discoverable in view of concession made by plaintiff as to prior criminal conviction in order to determine whether plaintiff was truthful about events surrounding the termination of her previousemployment).
18900200.00001/7375244v.1
G. Social Media. Don’t overlook discovery of social media sources. While some states have enacted legislation prohibiting or limiting an employer’s or prospective employer’s access to such accounts in the hiring process or as a condition of employment, the information may well be relevant to the issues in the litigation. While the courts will not allow a fishing expedition into such sources, the courts have allowed discovery on a showing of a factual predicate or basis that discoverable materials may be located on the social media site. See, e.g., Pereira v. City of New York, 40 Misc.3d 1210(A), 975 N.Y.S.2d 711 (Sup. Ct. Queens Co. June 19, 2013) (personal injury action) (on showing of factual predicate, court required plaintiff to provide all photographs, emails, status reports and videos posted on plaintiff’s media sites to court for in camera inspection to determine relevance); Giacchetto v. Patchogue-Medford Unionfree School Dist., 293 F.R.D. 112, 116-17 (E.D.N.Y. 2013) (disability discrimination action) (permitting discovery of any social networking postings that relate or refer to events alleged in amended complaint); Reid v. Ingerman Smith LLP, 2012 WL 6720752, at *2-3 (E.D.N.Y. Dec. 27, 2012) (sexual harassment action) (on showing of factual predicate, permitting limited discovery action of social media communications and photographs that reflect or relate to plaintiff’s emotional or mental state). But see, e.g., Pecile v. Titan Capital Group, LLC, 113 A.D.3d 526, 979 N.Y.S.2d 303, 304-05 (1st Dep’t 2014) (sexual harassment action) (denying defendant’s demand for access to plaintiff’s social media sites; no showing of basis, only vague and generalized assertions that it might relate to plaintiff’s claims for emotional distress); Tapp v. New York State Urban Development Corp., 102 A.D.3d 620, 620, 958 N.Y.S.2d 392, 393 (1st Dep’t 2013) (personal injury action) (denying access to Facebook account where no showing of relevance made).
IX. Confidentiality Stipulations and Orders
A. Consider what information your client may need to produce which may be confidential
B. Categories of such information include:
1. Trade secret, financial and propriety information, including compensation relating to employees other than Plaintiff, customer information, business plans, etc.
2. Medical Information.
C. Consider whether it is appropriate to have two-tier protection – a “standard” level of confidentiality protection applicable to most materials and a more stringent “attorneys’ eyes only” level. A two tier construct is most typically appropriate where the plaintiff works for a competitor of the defendant and the attorneys’ eyes only provision is intended to protect information disclosed by the defendant that could provide a competitive advantage to the plaintiff or his employer.
D. A sample Stipulation and Order for the Production and Exchange of Confidential Information, drafted by the New York City Bar Association Committee on State
19900200.00001/7375244v.1
Courts of Superior Jurisdiction, is attached as Appendix C. A sample S.D.N.Y. Protective Order, required by Judge Rakoff, is included in Appendix D as well.
E. In marking client documents confidential, be careful to include only those documents which truly qualify as confidential. If you need to file the documents marked confidential as an exhibit to a motion you may need to explain to the Court why they qualify. Also, needlessly marking documents adds to the logistical and administrative burdens when you seek to use such documents on motion or at trial.
F. Also note that certain information needs to be redacted before filing in Federal Court such as social security numbers, taxpayer identification numbers, dates of birth, names of minor children, and financial account numbers. Fed. R. Civ. P. 5.2. Under State Court Rules, documents concerning similar information and other information must be filed as “Secure Information.” 22 NYCRR § 202.5-b(d)(3)(iii).
BERKE-WEISS & PECHMAN LLP
ATTORNEYS AT LAW 488 MADISON AVENUE
NEW YORK, NEW YORK 10022 (212) 583-9500 · FAX: (212) 308-8582
WWW.BWP-LAW.COM Louis Pechman represents both employers and employees before federal and state courts and government agencies in all areas of workplace law, including employment discrimination, union-management relations, employment contracts, ERISA, non-competition agreements, independent contractor issues, and wage/hour disputes. As a practitioner for over twenty years in the labor and employment field, Mr. Pechman offers both individual employees and employers practical guidance on improving the employment relationship and, where appropriate, terminating that relationship. Prior to forming his partnership ten years ago with Laurie Berke-Weiss, Mr. Pechman has worked as a labor and employment attorney at three Manhattan law firms, as in-house labor counsel with the New York Daily News, and as a Field Examiner with the National Labor Relations Board. Admitted to the New York and New Jersey Bars, he is a graduate of the Cornell University School of Industrial and Labor Relations and the Fordham University School of Law. A frequent contributor to the New York Law Journal and other business and legal publications, Mr. Pechman often gives presentations on employment law topics, including the Americans with Disabilities Act, sexual harassment, and the development of human resource policies and procedures. He has lectured at the Fordham University School of Law, New York University, the Extension Division of the Cornell University School of Industrial and Labor Relations, and the American Bar Association. From 1994 through 1998, he was Chair of the New York County Lawyers' Association Committee on Labor Relations and Employment Law. Since 1996, Mr. Pechman has developed and moderated NYCLA's annual program on "How to Handle an Employment Discrimination Case."
Alan Serrins Esq.
Partner
Location:
New York, New York
Phone:
646-741-3490 866-654-0343
Fax:
212-233-3801
Email:
Email Me
Widely recognized as a pioneer in Employment, Civil Rights and Anti-Discrimination law, Alan Serrins brings more than 35 years' experience to his field. He began working in employment discrimination law when the practice was first emerging. From the outset, Serrins developed a passion for the field and a deep commitment to advancing the rights of employees in the workplace.
Serrins' employment law career launched when he joined the New York City Human Rights Commission in 1977. Two years later, he was appointed General Counsel by the New York City Commission on Human Rights; then 28 years of age, he was the youngest General Counsel in the Commission's history. As General Counsel, Serrins was Chief Law Enforcement Officer of the agency and supervised a staff of 16 attorneys and 22 investigators. Under Serrins' guidance, the Commission prosecuted thousands of discrimination complaints in the areas of employment, housing and public accommodation. Serrins was also in the forefront of the newly emerging field of sexual harassment, having successfully prosecuted the Commission's first such case in 1979. In 1982, Serrins moved to Belfast, Northern Ireland as a
consultant to the newly formed Fair Employment Agency of Northern Ireland, which modeled its law on the New York City Human Rights Law.
Upon his return to New York in 1984, Serrins moved into private practice founding Dienst & Serrins LLP, which would become a highly recognized, full-service litigation boutique over the next 16 years. Beginning in 2000, Serrins went on to co-found a successor firm, Queller Fisher Dienst Serrins Washor & Kool LLP, and subsequently founded Serrins & Associates, LLC. Serrins Fisher LLP was established in 2012.
Serrins has litigated dozens of cases from inception to verdict. His caseload has included claims under Title VII, the Age Discrimination in Employment Act, The Americans with Disability Act, the United States and New York State Constitution, state and local discrimination laws, civil service laws, State Education law, and Federal and State False Claims Act (Qui Tam) and common law claims such as breach of contract.
Serrins regularly appears on behalf of clients before the Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Commission on Human Rights and all federal, state, and appellate courts throughout New York. He has also represented numerous clients at arbitrations and mediations before various administrative bodies.
In addition to his litigation practice, Serrins provides legal advice to clients with regard to drafting and negotiating employment agreements, severance agreements and executive compensation.
Notable Successes
Some of Serrins' recent notable achievements include:
• Resolving a racial discrimination suit arising from a high-level executive's termination of employment from a multi-media conglomerate. Through use of alternative-dispute methods, Serrins obtained a seven-figure settlement prior to the scheduling of trial in the Supreme Court of New York, Bronx County.
• Resolving a Sarbanes Oxley Whistleblower case filed in the United States District Court for the Eastern District of New York, stemming from loss of employment by a financial controller who sought to rectify corporate fraud within the ranks of an international technology company.
• Successfully litigating before an administrative agency for a rape survivor victimized by her supervisor while performing cleaning services in New York City offices. The case became widely publicized, garnering attention for thousands of workers who endured sexual harassment and other hostile conditions in the commercial cleaning industry.
Other Work
In addition to his primary work representing victims of discrimination, Serrins serves as General Counsel for SilverSEAL Corporation, which was founded in 1988 to provide security-related services to
corporations, government and private individuals. The Corporation, headquartered in New York City's South Street Seaport, employs over 300 security personnel and operates locations worldwide. As General Counsel of SEAL, Serrins provides advice and counsel to management on all business matters, including contract negotiation, investigating employee complaints and training management/employees on applicable federal, state, and local laws.
Areas of Practice
• Employment Law
• Civil Rights and Anti-Discrimination law
Bar Admissions
• New York, 1975
• U.S. District Court Southern District of New York, 1977
• U.S. District Court Eastern District of New York, 1977
• U.S. Court of Appeals 2nd Circuit, 1985
• U.S. Supreme Court, 1990
Education
• New York Law School, New York, New York
o J.D. - 1974
• Hofstra University
o B.A. - 1971
Classes/Seminars
• Instructor, Institute for Mediation and Conflict Resolution, 1980 - 1981
• Guest Lecturer, Queens University, Belfast, 1982 - 1984
• Adjunct Professor, Conflict Management Program, Seton Hall Law School, 2011 - Present
Honors and Awards
• AV Rated by Martindale-Hubbell
• Lieutenants Benevolent Association of the New York City Police Department (“NYPD”), Award in Recognition for Best Legal Services, 1994
• Emerald Society of the NYPD – Service Award, 1994
Professional Associations and Memberships
• New York City Commission on Human Rights, General Counsel, 1979 - 1982
• National Employment Lawyers Association, Member
• New York State Human Rights Advisory Counsel to the State Division of Human Rights, Member, 1985
• Board of the Goldwater Memorial Hospital, Member
• Board of Working Women’s Institute, Member
• Council on Municipal Hospital Community Boards, Chairman, 1977 - 1979
Past Employment Positions
• Queller Fisher Dienst Serrins Washor & Kool LLP, Co-Found
Pro Bono Activities
• New York City Human Rights Commission, 1977
• Consultant to the Fair Employment Agency for Northern Ireland, Belfast, N.I., 1982 - 1984
PROFESSIONALS STAFF ALUMNI DIVERSITY
SERVICESCommercial and Corporate LitigationEmployment LitigationEmployment, Benefits & Labor
ADMISSIONSNew York Supreme Court of the United States U.S. District Court - District of Connecticut U.S. District Court - Eastern District of New York U.S. District Court - Northern District of California U.S. District Court - Southern District of New York United States Court of Appeals for the Second Circuit United States Court of Appeals for the Third Circuit
MEMBERSHIPSAmerican Bar Association New York City Bar Association New York State Bar Association
EDUCATIONColumbia University School of Law, JD University of Pennsylvania, BA
New York, NY v. +1.212.885.5581 f. +1.917.332.3007
Stephen E. Tisman concentrates his practice on employment, benefits and labor law, complex corporate and employment litigation (trials and appeals), and corporate business matters and counseling.
Mr. Tisman’s U.S. and international clients have included a multibillion dollar insurance company, an internationally-affiliated newspaper, non-profit organizations, a radio station, national consulting and actuarial firms, a reinsurance brokerage, a manufacturer of pates and specialty foods, apparel companies, a large travel agency, an "employee leasing" company, law firms, accounting firms, and a professional sports agent, among many others. He also has represented senior executives in many industries, including financial services, insurance, and the pharmaceutical industries, in litigated and contractual matters.
He has litigated in virtually all of the courts of New York and in state and federal courts throughout the U.S. He has practiced before state and federal administrative agencies and has brought and defended arbitrations before the American Arbitration Association, the New York Stock Exchange, the Financial Industry Regulatory Authority (“FINRA”), and its predecessor, the National Association of Securities Dealers (“NASD”).
At the Columbia University School of Law, Mr. Tisman was a James Kent Scholar and International Fellow, an Editor of the Columbia Journal of Transnational Law, and a recipient of a Hague Academy fellowship.
Mr. Tisman has been recognized in the New York edition of Super Lawyers from 2007-2013.
He has received the highest possible rating from Martindale-Hubbell.
COMMUNITY SERVICE & AFFILIATIONS
Mr. Tisman previously served as a member of the Council on Judicial Administration and on the Committees on Federal Courts and State Legislation of the New York City Bar Association.
NEWS
Blank Rome Announces Significant West Coast ExpansionJanuary 22, 2014
PDF Email Print
Stephen E. Tisman Partner
FEATURED RESOURCES
Contact Us Disclaimer Site Map © 2014 Blank Rome LLP All Rights Reserved Attorney Advertising
Download V-Card
HOME ABOUT US PEOPLE SERVICES INDUSTRIES CAREERS RESOURCES
Blank Rome LLP Blank Rome Government Relations LLC
SEARCH
Page 1 of 1Stephen E. Tisman | Blank Rome LLP
5/9/2014http://www.blankrome.com/index.cfm?contentID=10&bioID=5356