June 27, 2019

Initial Discovery Protocols for Federal Employment Cases Being Tested in United States District Courts


By Diane King

As of December 1, 2012, United States District Court Judge William Martinez has implemented the Initial Discovery Protocols for Employment Cases Alleging Adverse Action (“Protocols”). The Protocols are the product of a national committee of defense and plaintiff attorneys with the goal of creating pattern discovery for employment cases that would limit unnecessary cost and delay in the litigation process.

The Protocols would replace initial disclosures with initial discovery specific to employment cases alleging adverse action and provided automatically by both sides within 30 days of the defendant’s responsive pleading or motion. Although the Protocols would not affect parties’ subsequent right to discovery under F.R.C.P., they are meant to supersede the initial disclosures pursuant to F.R.C.P. 26(a)(1).

Instead of standard initial disclosures, the Protocols would require both plaintiff and defendant to provide discovery specific to employment cases. For example, the plaintiff will be required to produce any claims, lawsuits, administrative charges and complaints related to the factual allegations at issue in the lawsuit, as well as diaries, journals and calendar entries maintained by the plaintiff concerning the factual allegations of the suit. Conversely, the defendant will be required to produce all communications concerning the factual allegations of the claim, including those between the plaintiff and defendant, as well as between members of management and human resources. The defendant will also be required to produce the plaintiff’s personnel file, and any documentation of discipline.

The effectiveness of the Protocols are currently being tested by individual judges throughout the United States District Courts in a pilot project overseen by the Federal Judicial Center. For a PDF of Judge Martinez’s practice standards for civil and criminal matters, including the Protocols, click here.

Diane S. King is a trial attorney who practices exclusively in the area of plaintiff’s employment/civil rights law. She has represented plaintiffs in all areas of employment law, including federal court, state court, appellate court, arbitration and administrative proceedings. She has written and lectured frequently on employment law issues. She is a member of the National Employment Lawyers Association Executive Board, the Colorado Plaintiff Employment Lawyers Association Board, and numerous other professional boards. Ms. King is also a Fellow in the College of Labor and Employment Lawyers. Ms. King is a partner in the firm of King & Greisen, LLP. She received her Juris Doctorate from the University of California at Berkeley.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

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