Laying the groundwork for successful deposition testimony in your employment lawsuit

Any experienced employment lawyer will tell you that the plaintiff’s deposition (i.e., your sworn testimony under questioning by the employer’s attorney) is the most critical aspect of the discovery process. You and your employment lawyer must take the time necessary to prepare for this important event. In order to give your best deposition testimony, you must (1) understand (and not fear) the deposition process; (2) be able to recall and provide cogent testimony about the facts supporting your claims; and (3) have the presence of mind to avoid defense traps that are designed to produce inaccurate or incomplete testimony. In most cases, it takes several meetings and significant time with your employment lawyer to teach you these tools and ensure that you are comfortable and confident heading into the deposition.

Reasonable notice of the deposition

Your former employer (the defendant) and its employment attorneys will try to trip you up and unnerve you even before the deposition begins. For example, the employer’s attorney may schedule your deposition on as short notice as possible, without any consideration for your schedule or your employment lawyer’s schedule.

Don’t worry. The law requires that you be given “reasonable notice” of your deposition, which generally means at least 10 days’ notice, and often means that the employer’s lawyer must contact your lawyer regarding scheduling before sending you an official Notice of Deposition. If you do not receive “reasonable notice,” you and your employment lawyer have several options. You may (1) determine that you have time to prepare, and agree to appear at the deposition; (2) file a motion for a protective order with the court; or (3) fail to appear at the deposition. In most cases, filing a motion for a protective order is the best response.

Production of documents

It is routine practice for a Notice of Deposition to include a request that you bring certain documents to the deposition. A common ploy by defense counsel is to include a document request that is overly broad. Again, there is no need to worry about this or let it deter you from your preparations for the deposition. Your employment attorney will deal with an overly broad document request in the same way as a Notice of Deposition sent without reasonable notice.

In all likelihood, however, you will have to produce some documents at your deposition. Generally speaking, you are required to produce a copy of all documents, data compilations, and other tangible things that are within your possession, custody or control that support your claims. The penalties for failing to produce documents run the gamut from monetary sanctions to evidentiary sanctions (e.g., prohibiting introduction of the document that wasn’t properly produced) to, in the extreme case, dismissal of your lawsuit.

On a more practical level, if you fail to conduct a diligent search for responsive documents, you run the risk of not being able to give your best testimony because you will not have refreshed your recollection of the facts with the pertinent documents. Worse, documents found later may contradict your testimony. Thus, it is critical that you conduct a comprehensive search for all documents that might be relevant to your case. Relevant documents might include notes, calendars, diaries, journals, e-mails, photographs, cards, and letters. Turn over to your employment lawyer any document that falls under one of these categories:

  • Your work performance.
  • Documents in which you may have contemporaneously recorded your allegations of harassment/discrimination.
  • Documents that pertain to your emotional distress.
  • Documents that pertain to your economic damages.
  • Documents regarding your efforts to mitigate damages by locating comparable employment.

Be overly inclusive, and provide your employment lawyer with any documents that could possibly be relevant to your case. Your employment lawyer can make the ultimate decision as to what is and is not relevant.

Protect the confidentiality of your case

As you prepare for your deposition, two potential pitfalls of litigation easily can be avoided. The first pitfall concerns the waiver of the attorney-client privilege. The attorney-client privilege generally protects all communications between you and your employment lawyer from discovery by your employer’s lawyer. That privilege may be lost, however, if you tell anyone about the substance of those conversations. Likewise, you should not show any documents in the case to others.

The second pitfall involves the consequences that can occur if you discuss your case with anyone other than your employment lawyer. For example, at your deposition, you will have to identify each person you’ve spoken to about the case and the entire substance of those conversations. This will not only unnecessarily prolong your deposition, but also provide your employer with additional individuals to interview/depose in an effort to develop facts or derogatory information about you that can weaken your case. Moreover, when these individuals are interviewed and/or deposed, they may remember their conversations with you differently than you do, which will leave an opening for your employer to argue that you are making up things.

Accordingly, protect the confidentiality of your case by keeping all conversations, documents and other matters related to the case just between you and your lawyer.