Presenting a live 90-minute webinar with interactive Q&A Discovery Requests in Employment Litigation After Amended Rules 26(b) and 34(b): Propounding or Answering Requests Drafting or Responding to Interrogatories, Requests for Production of Documents or Admission of Facts, and Third-Party Subpoenas TUESDAY, JANUARY 31, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Patricia E. Antezana, Counsel, Reed Smith , Pittsburgh Michael H. Bornhorst, Counsel, Mayer Brown , Chicago Niloy Ray, eDiscovery Counsel, Littler Mendelson , Minneapolis The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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DISCOVERY REQUESTS IN EMPLOYMENT LITIGATION AFTER AMENDED RULES 26(B) AND 34(B)
Relevant Changes to the Federal Rules December 2015 Amendments • Rules 1, 16, 26, 34, and 37. • Significant impact on discovery practice. • Rule changes affect nearly every step of discovery. December 2016 Amendments • Rule 6. • Impact limited to timing of discovery response. 5
2015 Amendments I. DECEMBER 2015 AMENDMENTS A. Rule 1: Cooperation • FRCP are to be “construed, administered and employed by the court and the parties to secure the just, speedy and inexpensive determination of every action and proceeding.” Emphasizes cooperation among the parties to ensure that discovery • remains reasonable/proportional. B. Rules 16, 26, 34: Scheduling Rule 16 : Amendment generally shortened the time before the court • issues a scheduling order (now - 90 days after defendant has been served or 60 days after defendant has appeared). • Encourages parties to address ESI preservation in the initial scheduling order. 6
2015 Amendments I. DECEMBER 2015 AMENDMENTS B. Rules 16, 26, 34: Scheduling • Rule 26 : Amendment permits parties to “deliver” Rule 34 requests for production 21 days after service of the complaint, even if the Rule 26(f) scheduling conference has not yet taken place. But, time to respond to requests does not start until after the • Rule 26(f) conference. Rule 34 : Amendment • Encourages parties to address ESI preservation in the initial • scheduling order. 7
2015 Amendments I. DECEMBER 2015 AMENDMENTS C. Rule 26: Proportionality Standard • Addition of proportionality to the scope of discovery under Rule 26(b)(1): "Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.“ Emphasizes cooperation among the parties to ensure that discovery remains reasonable/proportional. • Eliminates the “reasonably calculated to lead to the discovery of admissible evidence” standard. 8
2015 Amendments I. DECEMBER 2015 AMENDMENTS C. Rule 26: Proportionality Standard • Courts have focused on importance and burden in deciding discovery disputes, and expect parties to address these factors. • In raising discovery issues with the court, parties should provide specific, factual support tied closely to proportionality factors. • These factors also should be taken into account in crafting discovery requests and responses/objections, as well as during the meet and confer process. • Courts appear willing to actively curtail otherwise relevant discovery due to a lack of proportionality. 9
2015 Amendments I. DECEMBER 2015 AMENDMENTS D. Rule 34: Requests for Production • Requires greater detail in responding to document requests. Must now state the grounds for objections "with specificity" and indicate whether any responsive materials are being withheld; must also indicate timing of production. 10
2015 Amendments I. DECEMBER 2015 AMENDMENTS D. Rule 34: Requests for Production Courts have been quick to reprimand parties for not objecting with • specificity and instead serving general, boilerplate objections. Court may strike such objections/deem them waived, grant opposing party's motion to compel, and/or award costs. • Objections should be tailored to respond to the requests and identify what documents will be withheld and produced. • Need to think carefully about how to apply this in practice, particularly in cases involving large volumes of e-discovery where parties need to respond to written discovery before collecting/reviewing their documents. Courts are also enforcing the requirement to indicate when documents will • be produced; failure to do so may result in court's imposition of its own timeline upon granting a motion to compel. 11
2016 Amendments II. DECEMBER 2016 AMENDMENT A. Rule 6: Timing • Amendment removes electronic service rule under Rule 5(d)(2)(E). Bottom line: eliminates the three additional days for electronic • service. 12
Age Discrimination – Single Plaintiff Sue Jones alleges that she was fired by software company VR Kids, Inc., in April 2015, simply because of her age. Jones, who had been an engineer with VR Kids for 8 years, was 45 years old when she was fired. Jones claims that she endured an ageist work environment, that younger employees received preferential treatment and lesser discipline, that VR Kids consistently hired under-40 candidates, and that she was replaced by a 25-year-old recent grad. VR Kids answers that Jones was fired for poor performance, that she was over- paid and under-performing, that she behaved unprofessionally at work and towards her colleagues, and that lately she had not shown the performance growth and development expected of a senior engineer in her position. The company denies that Jones was replaced by a younger hire, and states that prior to the lawsuit, she did not raise any of her concerns with HR/management. 13
Jones v. VR Kids – Round 1 Jones sues VR Kids on January 4 th , 2016, in federal court. VR Kids is served on January 15 th , and retains outside counsel shortly thereafter. Counsel for VR Kids begins identifying paper and electronic content to • preserve, including e-mail, personnel files, performance reviews, engineer hiring/firing/payroll data, and HR material (including the employee handbook, the code of conduct, age-discrimination training records, and applicable policy and procedure documentation). Counsel have an introductory call on February 1 st , and set a formal Rule 26(f) meet-and-confer for the 22nd, ahead of the March 15 th scheduling conference. On February 18 th , Jones e-mails Ptfs’ First Set of RFPs to VR Kids’ counsel. The RFPs demand production on or before March 21 st . 14
R. 16 Scheduling Conference - March 15 th Ahead of the conference, the parties file a R. 16(f) report stating that the parties: • met-and-conferred on March 1 st ; are working on an ESI protocol; • • will propose a stipulated confidentiality and claw-back order; and have a disagreement regarding Jones’s RFPs. • At the conference, the parties present their dispute to the Court. 15
Jones v. VR Kids – Round 2 Jones RFP 1: Produce all corporate e-mail sent to, received by, or regarding Plaintiff Sue Jones, including but not limited to all such e-mail related to her hiring, her job performance, her termination, and the hiring of her replacement. VR Kids Response: Defendant objects to this Request because it is overly broad, unduly burdensome, and not proportional to the needs of the case. This Request requires Defendant to search through its entire e-mail system and archives. This Request is argumentative in asserting that any “replacement” was hired. Defendant objects to this Request to the extent it calls for the production of any information that is protected by the attorney-client privilege or the work- product doctrine. Subject to and without waiver of these objections, Defendant will produce relevant, non-privileged e-mail from the following individuals, for the time period May 1, 2014- May 1, 2015: Barry Hardy [Jones’s supervisor], Kate Dixon [relevant HR manager], and Sarah Simon [head of HR]. 16
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