Model lists for a discrimination case.

By Andrew H. Friedman

Excerpted from Litigating Employment Discrimination Cases

Two types of discovery are particularly useful in seeking direct evidence of discrimination—document requests and depositions.

With respect to document requests, you should request all documents concerning: (1) the plaintiff; and (2) the decision-making process. Seek all versions, drafts, and copies of the requested documents that differ in any way from the requested documents. For example, in a failure to hire case, ensure that the defendant produces not just the resume that the plaintiff submitted, but also any copies of the resume that are in any way different from the original resume (e.g., copies of the resume onto which the decision-makers may have made incriminating comments). Request copies of all e-mails written about the plaintiff. See generally Ch. 6, Discovery, §6:134 (Document Requests Propounded by Plaintiff); see also Form 6J-1 (Request for Documents Propounded by Plaintiff).

For example, consider sending out the following basic document requests:

PLAINTIFF’s complete personnel file(s) (including the jacket or cover of the file).

Any and all personnel documents that RELATE OR PERTAIN TO PLAINTIFF, regardless of whether they are contained in PLAINTIFF’s personnel file.

Any and all personnel manuals, employee handbooks, benefits manuals and salary schedules which were applicable to PLAINTIFF at any time during his employment with the COMPANY.

Any and all supervisors manuals which were in effect at any time during PLAINTIFF’s employment with the COMPANY.

Any and all DOCUMENTS that RELATE OR PERTAIN TO the COMPANY’s policies or procedures regarding performance evaluations which were in effect at any time during PLAINTIFF’s employment.

Any and all DOCUMENTS that RELATE OR PERTAIN TO YOUR policies or procedures for terminating the employment of one of YOUR employees.

Any and all DOCUMENTS that RELATE OR PERTAIN TO YOUR policies or procedures for disciplining one of YOUR employees.

Any and all DOCUMENTS that RELATE OR PERTAIN TO any interview(s) which YOU, or anyone acting on YOUR behalf, had with PLAINTIFF before YOU hired him, including, but not limited to, any notes from such interviews.

Any and all DOCUMENTS that RELATE OR PERTAIN TO any performance evaluations or job reviews (including all drafts and/or versions thereof) of PLAINTIFF during his employment with the COMPANY.

Any and all DOCUMENTS that RELATE OR PERTAIN TO any write-ups, complaints, comments, criticisms or warnings, oral or written, concerning PLAINTIFF’s employment with the COMPANY.

Any and all DOCUMENTS that RELATE OR PERTAIN TO any disciplinary action or counseling given to PLAINTIFF during his employment with the COMPANY.

Any and all DOCUMENTS describing the work duties and/or responsibilities of the [name of plaintiff’s position].

Any and all DOCUMENTS that RELATE OR PERTAIN TO any investigation conducted by YOU in connection with any charge, complaint, allegation, grievance and/or report, formal or informal, made by PLAINTIFF about [insert type of complaint made (e.g., discrimination, harassment, retaliation)].

Any and all e-mails, notes, memoranda or other DOCUMENTS that RELATE OR PERTAIN TO any and all COMMUNICATIONS by, between or among any of YOUR current or former employees, officers or representatives that in any way RELATE OR PERTAIN TO PLAINTIFF.

Any and all DOCUMENTS that RELATE OR PERTAIN TO any charge, complaint, allegation, grievance and/or report, formal or informal, by any of YOUR current or former employees about [insert type of complaint made (e.g., discrimination, harassment, retaliation)].

All DOCUMENTS that RELATE OR PERTAIN TO, or tend to prove, disprove, or negate the allegation made in paragraph [insert substantive paragraph number from complaint and repeat for every substantive paragraph] of the COMPLAINT that “[insert language from paragraph].”

All DOCUMENTS that RELATE OR PERTAIN TO, or tend to prove, disprove, or negate YOUR [insert affirmative defense number (e.g., First, Second)] Affirmative Defense: [insert language from appropriate affirmative defense.”]

Any and all insurance policies that may, in whole or in part, provide coverage for any of the claims asserted by PLAINTIFF in his COMPLAINT.

Any and all DOCUMENTS that RELATE OR PERTAIN TO any claims YOU have made to an insurance company regarding any of the claims asserted by PLAINTIFF in his COMPLAINT.

PLAINTIFF’s complete salary and wage records, payroll records, and W-2 forms for every year of his employment with the COMPANY.

For any computer-generated documents produced in response to any of the foregoing demands, please produce any and all computer records or other DOCUMENTS that evidence or reflect the dates on which each such document was prepared and/or modified.

With respect to depositions, depose all of the decision-makers, all of the people who contributed recommendations and information to the decision-makers, and anyone with whom the decision-makers discussed the reasons for their decisions.


Andrew H. Friedman has litigated virtually every type of employment case (on behalf of management, individual defendants, and plaintiffs) in the California state and federal courts. Mr. Friedman has also represented both employers and employees in administrative matters pending with numerous governmental agencies, including the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, and the California Division of Labor Standards Enforcement. He is the author of Litigating Employment Discrimination Cases, from which this article is excerpted.