Informal discovery techniques that your former employer’s lawyer may use to gather evidence against you
When you file a lawsuit alleging wrongful termination or discrimination or another unlawful emloyment practice, your former employer (the “defendant”) will immediately take steps to defend itself. Very early in the litigation (sometimes even before a lawsuit is filed), the defendant will begin a process of informal discovery, seeking to learn everything it can about you and your claims. Some common informal discovery techniques used by employers and their attorneys include:
Interfering with your witness interviews
One of the most important informal discovery devices available to you is your ability to interview witnesses. The attorney Rules of Professional Conduct prohibit your employment lawyer from contacting an officer, director, managing agent or anyone else whose actions may be binding on the employer or form the basis of a claim or the employer’s defense. All other witnesses are fair game.
Be aware, though, that the defendant may try to thwart these interviews by asking the witnesses not to speak with you or your attorney or, at the very least, not to speak with you unless the employer’s lawyer also is present. This can be quite effective when the witness is a current employee who is afraid of losing his job if he defies the employer and speaks with you, or someone with a current business relationship with the defendant-employer who does not want to jeopardize that relationship.
If you are no longer employed by the defendant-employer, then you have little incentive to agree to be interviewed by the defendant. If, however, you are still employed, your employer likely will try to interview you. An interview like this typically is accomplished in one of two ways.
One way is to give you paper and a pen, show you to a private office (without a telephone), and instruct you to take as much time as you would like to write down all of your allegations of discrimination, harassment or retaliation. When you have completed this task, you will be asked to write at the bottom of the last page words to the effect of: “I have been given as much time as I desired and I have fully and completely described all of the incidents of [discrimination, harassment, retaliation].” You also will be asked to initial the bottom of each page of the document and sign and date the last page of the document.
A second means of conducting this type of interview is to have a member of the employer’s human resources staff (so that he or she can later testify about the interview) interview you in the presence of the defense attorney (so that he or she can ensure all relevant questions are asked and nothing inappropriate is said). The interview will be followed up by a memorandum or letter to you, summarizing in detail all of your claims and requesting that you sign and date the document to confirm that it accurately states all of the alleged incidents of [discrimination, harassment, or retaliation]. The purpose of the memorandum or letter is to “cement” your story into place so that you cannot later expand upon or exaggerate your claims.
The defendant employer and its attorneys will interview all management personnel, your co-workers, and any other employees who may have relevant information about your employment and discharge, if applicable. This would include relevant decision-makers, alleged harassers, persons whose opinions may have provided grounds for or prompted an adverse employment action, percipient witnesses who may have observed the discrimination you allege to have experienced, and other individuals identified in your complaint. Each witness will be interviewed separately. The interviews will cover the following topics: (a) the witness’s role in the company; (b) the nature and history of the witness’s professional relationship with you and the person(s) accused of discriminating; (c) personal conflicts; (d) performance-related issues; (e) the witness’s knowledge of the alleged incidents of discrimination; (f) the level of hostility toward you; and (g) whether other employees have been discriminated against.
The attorney for the defendant-employer will conduct the interviews. Typically, the attorney conducting the interview will:
- Explain the interview process and other preliminary matters.
- Explain that the interview is being conducted as part of an investigation on behalf of the employer.
- Explain, if appropriate, that the witness has not been accused of any wrongdoing, but that he or she has been identified as a person with relevant knowledge of the circumstances surrounding the plaintiff’s (i.e., your ) allegations.
- Explain that although the interview may be uncomfortable or unpleasant at certain points, the investigation is necessary to obtain a more complete picture of the alleged incidents and to allow the employer to defend itself.
- Encourage the witness to speak truthfully and candidly even though the facts may not be favorable to the employer’s position.
- Explain that it is illegal for the employer to condone or allow retaliation against the plaintiff-employee (you) or against the witness for participating in the investigation.
- Conclude the questioning with open-ended questions to inquire whether the witness has anything else to say or any documents that are relevant to the circumstances surrounding your claims.
- End the interview by thanking the witness for his or her time and asking the witness to contact the employer’s attorney if he or she should recall any other information or any relevant documentation.
- Preserve the attorney-client privilege by advising each witness that the interview is protected by the attorney-client privilege and that he or she should not disclose the content or subject matter of the interview to anyone else.
The defense attorney will take detailed notes of the interview and will use this process to assess which individuals may make strong witnesses in favor of the employer’s position and which individuals are likely to testify on your behalf. Throughout the interviewing process, the defense employment attorney will be looking for any inconsistencies in the witnesses’ stories and exploring these in an effort to identify weaknesses in the employer’s defense or your case. The defense attorney may try to obtain a signed affidavit from some witnesses, particularly non-supervisory employees.
The defendant’s attorney will request from the Equal Employment Opportunity Commission and/or the state fair employment practices agency your investigation file and all other documents related to the charge you filed with the agency. This would include a copy of the charge, the agency’s investigation file, and correspondence, including any “Notice of Charge of Discrimination,” “Notice of Right to Sue,” and “Cause Letter of Determination.”
In addition, the employer’s attorney likely will check public records and court records for any proceedings you may have been involved in. This would include court dockets, divorce and custody proceedings, bankruptcies, and arrest and conviction records. Court records help the employer and its attorneys determine whether you are litigious, have other sources of emotional distress, or have a history of asserting claims against other employers.
Using ancillary proceedings
In addition to allegations of discrimination, harassment or retaliation, you may have made claims in ancillary proceedings (e.g., a claim for unemployment compensation, state and/or Social Security disability benefits, or workers’ compensation). Attorneys rarely get involved in these proceedings, so the employer’s defense counsel can attempt to use them to gain informal discovery and to establish defenses to your employment lawsuit. For example, if your lawsuit alleges disability discrimination, but your application for disability benefits states that you are totally disabled and unable to work, the employer’s attorney may try to use these seemingly contradictory statements to obtain a summary judgment against you. Similarly, an unemployment proceeding, in which you are required to submit a declaration or testify, can be a goldmine of evidence for the employer’s defense counsel, particularly if defense counsel can attend the hearing and cross-examine you.