Discovery Plans for Employment Litigation

posted by Neil Klingshirn  |  Jan 15, 2010 1:26 PM [EST]  |  applies to Ohio

A court’s Rules of Civil Procedure (its “Civil Rules”) empower the parties to gather evidence, including that in the control of opposing parties and reluctant witnesses.  The Civil Rules do this with Discovery Tools. They include:

To make the most effective use of the Discovery Tools, each party should prepare a Discovery Plan in all but simplest case.  Although not required by the Civil Rules, a Discovery Plan sets out a course of action to gather all available evidence within the time allowed by the Discovery Tools and the Courts' trial calendar. 

Discovery Plans

A Discovery Plan should include:
  • a list of the evidence needed by the party.
  • a list of who has the evidence.
  • a set of written discovery requests (i.e., document requests, interrogatories and requests for admissions) sent to each person who has evidence, requesting that evidence.
  • a second (or third) set of written discovery to overcome objections or to pursue emergent claims.
  • a list of witnesses to depose.
  • a time line setting the sequence for written discovery and depositions.
A Discovery Plan should also address the parties' own disclosure obligations. In federal court, parties must voluntarily disclose at the outset the documents and witnesses that support their s claims or defenses.  By trial, state and federal courts require the parties to disclose their exhibits and witnesses. In addition, each party should anticipate responding to the opponents discovery efforts. To that end, the party should identify, protect and preserve any discoverable evidence in its possession.

Caution: Destroying discoverable evidence after a threat of litigation can lead to severe consequences. 

Evidence needed by the Party

The evidence that a party needs to prove a claim or defense depends on the claim or defense. Employment cases include claims of:
  • discrimination
  • retaliation
  • unequal pay
  • unpaid vacation or wages
  • unpaid overtime or minimum wage
  • breach of an agreement, such as failure to pay promised commissions
  • failure to restore to a job following a family or medical leave and
  • whistleblowing
Each of these claims has its own set of factual "elements" that the plaintiff must prove.  In a discrimination claim, for example, motive plays a key role. In an unequal pay claim, however, motive is immaterial. 

To determine the evidence necessary to prove a particular claim, the party must know the elements required to prove each claim.  The elements of specific claims and the evidence necessary to prove them are covered in other articles in this wiki.

Relationship of the Discovery Plan to the Trial Brief

A Discovery Plan identifies the evidence necessary to prove a claim and charts a course to gather it in time for trial. A Trial Brief describes the evidence that the party has gathered and will present at trial.  A successfully executed Discovery Plan should therefore produce a Trial Brief containing all of the evidence necessary to prove the party's claims.

posted by Neil Klingshirn  |  Jan 15, 2010 1:26 PM [EST]  |  applies to Ohio

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Neil Klingshirn

Neil Klingshirn
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