EMPLOYMENT DISCRIMINATION DEPOSITIONS Law, Strategy and Sample Depositions

Transcription

1 EMPLOYMENT DISCRIMINATION DEPOSITIONS Law, Strategy and Sample Depositions Employ.01 Employ.02 Employ.03 Employ.04 Employ.05 Employ.06 by Anthony J. Oncidi Synopsis Introduction The Purpose of a Deposition Who Should Be Deposed? [1] The Deposition of the by the Defendant [2] The Deposition of the Defendant(s) by the [a] The s Supervisor [b] Key Decision Maker of Employer [c] Human Resources Personnel [d] Former Co-Workers of the [e] Person Designated to Testify on Behalf of Corporation [f] Employer s Officers or Executives [3] The Deposition of Third Parties [a] Former Employees [b] Family Members of [c] Treating Physician as a Percipient Witness [d] Custodians of Business Records [e] Out-of-State Witnesses [f] The Deposition of EEOC Investigators [4] The Deposition of an Expert Witness Scheduling the Deposition [1] When Should the Deposition Be Scheduled? [2] The Sequence of the Depositions [3] Where Should the Deposition Take Place? [4] Should the Client Be Present? Does the Deposition Best Serve Your Client s Needs? Preparing to Take a Deposition [1] Conduct Extensive Discovery before the Deposition [a] Mandatory Disclosure Pursuant to Rule 26 [b] Document Demands [i] Sample Document Demand Propounded by to Defendant [c] Interrogatories [i] Sample Interrogatories Propounded by to Defendant [ii] Sample Interrogatories Propounded by Defendant to [d] Requests for Admissions Employ-ix

2 EMPLOYMENT DISCRIMINATION Employ-x Employ.07 Employ.08 Employ.09 Employ.10 [e] Subpoena of Third-Party Records [f] Undercover Investigations [2] Electronic Discovery [a] Introduction [i] The Amendments to the Federal Rules of Civil Procedure [ii] Accessible versus Non-accessible Sources [iii] Form of Production [iv] Privilege [v] Sanctions and the Safe Harbor Provision [b] The Preservation Obligation [i] Implementing a Litigation Hold [c] Retention Policies [i] Other Electronic Data Policy Tips [d] Rule 30(b)(6) Deposition regarding ESI [3] Is a Protective Order Needed? [4] The Defendant Should Conduct a Comprehensive Internal Investigation [5] Review the Case File and Documents [6] Understanding the Legal Issues Involved: Research Is Key [7] Determine Objectives of the Deposition [8] Consult with Expert if Necessary [9] Prepare Deposition Outline [10] Prepare Exhibits in Advance Sample Stipulated Protective Order Exhibit A Affidavit of Compliance with Protective Order General Deposition Techniques [1] Open-Ended and Leading Questions [2] Demeanor of Attorney [3] Scattering the Issues [4] Close Out Each Topic [5] Prior Inconsistent Statements [6] How to Handle Deponents Who Cannot Recall Information Retaining Control of the Deposition [1] Handling Hostile Opposing Counsel [2] Instructions Not to Answer Videotaping Depositions [1] Advantages of Videotaping [2] Any Party Can Videotape a Deposition [3] Cost Should Be Considered When Deciding Whether to Videotape [4] Other Reasons Why a Party Should Not Videotape Preparing Yourself to Defend a Deposition [1] Defining Your Objectives [2] List of Common Objections [3] Cross-Examining Your Own Witness [4] Privilege Issues and Instructions Not to Answer

3 Employ-xi Employ.11 Employ.12 Employ.13 EMPLOYMENT DISCRIMINATION Preparing the Witness for a Deposition [1] Preparing the Witness for a Deposition Beginning the Deposition [1] Sample Admonitions [2] Sample Questions to Elicit Background Information Common Topics Relevant to Discrimination Cases [1] The s Application and Resume, and the Interview and Hiring Process FORM NO. 1: s Application and Interview Defendant s FORM NO. 2: s Application and Interview s [2] Employment At-Will FORM NO. 3: Employment At-Will Defendant s FORM NO. 4: Employment At-Will s [3] Employee Handbook and Company Policies FORM NO. 5: Employee Handbook/Policies Defendant s FORM NO. 6: Employee Handbook/Policies s [4] The s Performance FORM NO. 7: s Performance Defendant s FORM NO. 8: [5] The s Supervisors FORM NO. 9: s Performance s s Supervisors Defendant s FORM NO. 10: s Supervisors s s Supervisors [6] Treatment of Similarly Situated Employees FORM NO. 11: Treatment of Similarly Situated Employees Defendant s Questions for FORM NO. 12: Treatment of Similarly Situated Employees s Questions for s Supervisor [7] Record of Disciplinary Actions FORM NO. 13: Disciplinary Records Defendant s FORM NO. 14: Disciplinary Records s [8] Reason for Termination of the s Employment FORM NO. 15: s Discharge Defendant s

4 EMPLOYMENT DISCRIMINATION Employ-xii Employ.14 FORM NO. 16: s Discharge s [9] Prior Lawsuits and Administrative Complaints FORM NO. 17: Prior Lawsuits/Administrative Complaints Defendant s Questions for FORM NO. 18: Prior Lawsuits/Administrative Complaints s Questions for Defendant s Agent [10] Deposition Testimony Pertaining to Common Topics FORM NO. 19: Questions regarding s Application and Resume Specific Types of Discrimination Claims [1] Sexual Harassment [a] Quid Pro Quo Harassment [b] Hostile Work Environment [c] Same-Sex Sexual Harassment FORM NO. 20: Sexual Harassment Defendant s FORM NO. 21: Sexual Harassment s FORM NO. 22: Sexual Harassment Examination of FORM NO. 23: [2] Title VII [a] Types of Claims [i] Disparate Treatment Claims [ii] Disparate Impact Claims [b] Gender Discrimination [c] Race and Color [d] National Origin [e] Religion FORM NO. 24: Sexual Harassment Examination of Defendant Title VII Discrimination Defendant s FORM NO. 24A: Title VII Discrimination Defendant s s Economic Expert Background FORM NO. 25: Title VII Discrimination s or Supervisor FORM NO. 25A: Title VII Discrimination Defendant s in Sex Discrimination Case FORM NO. 26: FORM NO. 27: Title VII Sexual Harassment Examination of Title VII Sexual Harassment Examination of Defendant

5 Employ-xiii EMPLOYMENT DISCRIMINATION [3] Age Discrimination FORM NO. 28: FORM NO. 29: FORM NO. 30: FORM NO. 31: Age Discrimination Defendant s Age Discrimination s or Supervisor Age Discrimination Examination of Age Discrimination Examination of Defendant s Agent [4] Medical Condition/Disability Discrimination [a] Introduction [i] Overview [ii] Disability Defined [iii] Major Life Activity [iv] Qualified Individual [v] Harassment [b] s Burden of Proof [i] Discrimination Treatment Based on Disability [ii] Failure to Provide a Reasonable Accommodation [iii] Discrimination against Individual Who Has a Record of Disability [iv] Discrimination against Individual Regarded as Disabled [c] Defenses [i] Undue Hardship [ii] Requested Accommodation Is Unreasonable [iii] Legitimate Non-Discriminatory Reason [iv] Job-Related and Consistent with Business Necessity [v] Direct Threat FORM NO. 32: FORM NO. 33: FORM NO. 34: FORM NO. 35: s Disability Defendant s s Disability s Medical Condition/Disability Discrimination Examination of Medical Condition/Disability Examination of Defendant [5] Pregnancy/Family Care and Medical Leave [a] Introduction [b] s Entitlement to Protection [c] Employer s Duty to Investigate [d] Prima Facie Case [e] Limited Defenses to FMLA Claims [f] Pregnancy Discrimination Act FORM NO. 36: s Pregnancy/Family Care and Medical Leave Defendant s

6 EMPLOYMENT DISCRIMINATION Employ-xiv Employ.15 FORM NO. 37: FORM NO. 38: FORM NO. 39: [6] Retaliation [a] The s Prima Facie Case [b] Defenses to Retaliation Claims [i] Trivial Acts [ii] No Causal Connection FORM NO. 40: FORM NO. 41: FORM NO. 42: FORM NO. 43: s Pregnancy/Family Care and Medical Leave s Pregnancy and Family Leave Examination of Pregnancy and Family Leave Examination of Defendant Retaliation Defendant s Questions for Retaliation s Questions for Defendant s Agent or Supervisor Retaliation Examination of Retaliation Examination of Defendant [7] Sexual Orientation FORM NO. 44: Sexual Orientation Discrimination Defendant s Damages [1] Introduction [2] Specific Damages Available to the [a] Damages for a Violation of the Family and Medical Leave Act (FMLA) [b] Damages for a Violation of Title VII (Including Sexual Harassment) and the Americans with Disabilities Act (ADA) [i] Back Pay [ii] Front Pay [iii] Interest [iv] Emotional Distress and Compensatory Damages [v] Punitive Damages [vi] Attorneys Fees [vii] Mitigation [viii] Injunction [c] Damages for Age Discrimination under the Age Discrimination in Employment Act (ADEA) [d] Comparing Damage Awards among the Statutes [3] After-Acquired Evidence FORM NO. 45: General Outline regarding Damages Defendant s Index