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Litigating Sexual Harassment and Sex Discrimination Cases

By Elizabeth Hubbard

Excerpted from Litigating Sexual Harassment & Sex Discrimination Cases

A well-drafted request for production of documents will insure that you have all the documents available to the defendant that allegedly support its defense to the litigation. The documents received in response may also aid in streamlining the case and identifying appropriate individuals to depose.

In sexual harassment cases, requests for production of documents may be helpful in revealing:

  • Prior complaints of sexual harassment (or other forms of harassment) by the alleged harasser.
  • Disciplinary action taken against your client and/or the alleged harasser.
  • The existence or non-existence of policies and procedures concerning sexual harassment in the workplace.
  • Evidence of any investigation the employer may have undertaken and the results of the investigation.

In sex discrimination cases, requests for production of documents may be helpful in revealing:

  • Prior complaints of sex discrimination made against the person responsible for the adverse employment action.
  • Information concerning the qualifications and background of the individual treated more favorably than your client.
  • Information concerning the defendant’s personnel practices, including statistical information (if appropriate) regarding the number of females v. males promoted, terminated, etc.

1.    Sexual Harassment Cases [§7.34]

Documents which should be requested in a sexual harassment claim include:

  • Personnel files of other employees who alleged they were harassed by harasser.
  • All documents consulted by defendant in answering the interrogatories or referred to in defendant’s answers to the interrogatories;
  • Documents concerning the employer’s polices in effect during the relevant time period, including sexual harassment policies, EEO (Equal Employment Opportunity) policies, internal complaint procedures, disciplinary polices and termination policies;
  • Documents concerning sexual harassment training provided by the employer. See Form 29B, Request for Production of Documents (Plaintiff) re: Sexual Harassment Policies and Training;
  • Employee handbooks and/or other statements of the employer’s policies or benefits given to the plaintiff;
  • Witness statements;
  • Documents concerning the employer’s investigation of plaintiff’s internal complaint and the action taken in response to that complaint and/or investigation;
  • Documents reflecting the job duties and responsibilities of the position held by the alleged harasser. (This information is important in cases where there is an issue as to whether the harasser was a supervisor, manager, managing agent, independent contractor or co-worker.);
  • Documents submitted by the defendant to the EEOC and/or the State FEP agency concerning plaintiff’s charge;
  • Documents regarding complaints, charges or lawsuits of any kind filed against the alleged harasser;
  • Plaintiff’s personnel file including salary history;
  • The alleged harasser’s personnel file;
  • Correspondence or other written communications between the plaintiff and the alleged harasser.
  • All electronic information stored on computers and hand-held devices, including e-mails and text messages.

2.    Sex Discrimination Cases [§7.35]

In sex discrimination cases, the requests for documents should include, but need not be limited to, the following:

  • Documents concerning the employer’s polices in effect during the relevant time period, including policies on discrimination in the workplace, EEO policies, internal complaint procedures, disciplinary policies (if at issue), criteria for salary increases (if at issue), promotion and/or hiring policies (if at issue) and termination policies (if at issue);
  • Documents that reflect the job duties, responsibilities, compensation and benefits of the position held by the individual who received the more favorable treatment,e.g., job descriptions, pay stubs and W-2 forms. (These documents should be requested for the time period before and after the employment action, so that you have a basis for comparison. These documents will help you calculate what your client would have received had she or he been selected for the promotion, not selected for termination, etc.);
  • Documents reflecting the job duties, responsibilities, compensation and benefits of the position held by your client at the time of the adverse personnel action;
  • Documents to and from the EEOC and/or State FEP agency concerning your client’s charge of discrimination;
  • Documents regarding other complaints, charges or lawsuits of any kind filed against the individual who made the adverse personnel decision;
  • Employee handbooks and/or employee benefits handbooks given to plaintiff during his or her employment;
  • Documents reflecting the monetary damages sustained by your client, e.g., salary information for the person receiving the promotion or salary increase.

Practice Note: Be sure your document request defines “documents” as inclusive of all computer retained information and e-mails. Specifically ask for “all e-mail correspondence, including deleted e-mails.”

REQUEST FOR PRODUCTION OF DOCUMENTS

                                     (PROPOUNDED BY PLAINTIFF)

[Attorney’s Name]

[Firm Name]

[Firm address and telephone number]

Attorneys for Plaintiff, [Name of Plaintiff]

   UNITED STATES DISTRICT COURT

_____ DISTRICT OF _____

[Name of Plaintiff]                               )       CASE NO:

                                                                     )

Plaintiff,                                            )       PLAINTIFF’S FIRST REQUEST

                                                                     )      FOR PRODUCTION OF

vs.                                                   )       DOCUMENTS TO DEFENDANT

                                                                     )      [NAME OF DEFENDANT]

[Name of First Defendant],                    )

[type of entity,  e.g.,                                    )

corporation, partnership,                       )

individual]; [Name of Second                      )

Defendant], [type of entity];                    )

and DOES 1 through 10,                       )

inclusive,                                             )

                                                         )

Defendants.                                         )

                                                          )

PROPOUNDING PARTY:           Plaintiff, [Name of Plaintiff]

RESPONDING PARTY:              Defendant, [Name of Defendant]

SET NUMBER:                          One

TO DEFENDANT [NAME OF DEFENDANT] AND ITS ATTORNEYS OF RECORD:

Pursuant to Federal Rules of Civil Procedure 26(b)(1) and 34, Plaintiff [Name of Plaintiff] requests that Defendant [Name of Defendant] respond in writing, under oath, to the following Requests for Production of Documents within 30 days of service of this request, and produce and permit inspection and copying of the documents described below on [specify date and time for production], at [specify place of production, e.g., your office]. In lieu of producing the documents for inspection, Defendant may forward legible copies of them to counsel for Plaintiff on or before the date of production.

DEFINITIONS AND INSTRUCTIONS

The following definitions and instructions are incorporated by reference whenever applicable in this document.

1.      The terms “you,” “your,” or “Defendant,” as used herein, shall mean Defendant [Name of Defendant Employer] and its servants, agents, employees, representatives, divisions, attorneys, and anyone else acting on its behalf.

2.      The term “person” or “persons,” as used herein, shall include any natural person, partnership, firm, corporation, trust, association, joint venture, public entity, business organization, or other legal entity.

3.      The term “Plaintiff,” as used herein, shall mean Plaintiff [Name of Plaintiff].

4.      The term “document” or “documents,” as used herein, shall mean the original, or a copy of any kind, of written, typewritten, printed, or recorded material whatsoever, including, but not limited to, notes, memoranda, letters, diaries, calendars, articles, telegrams or other correspondence, worksheets, recordings, studies, analyses, opinions, books, reports, transcriptions of recordings, information retrievable from computers, pictures, drawings, photographs or other graphic representations, and any other physical means of communication, including tape recordings and magnetic tape. The term specifically includes any drafts, whether or not used, of the foregoing, and any altered or annotated copies of the foregoing.

5.      The term “Complaint,” as used herein, shall mean the Complaint for Damages on file in this action.

6.      The term “personnel file,” as used herein, shall include any and all records maintained either in the normal course of business or for any special purpose with respect to the application, course of employment, and termination of any employee of Defendant, and specifically includes applications, disciplinary notices, performance evaluations, employment histories or summaries, records of residential addresses and telephone numbers, termination notices, job assignment or classification records, compensation and other similar records. For purposes of this request, the term “personnel record” need not include records of medical benefits, condition, or claims; designations of, or changes in, beneficiary; garnishments; income tax records; or insurance benefits, except as pertaining to Plaintiff’s records.

7.      If any document is withheld under a claim of privilege or other protection, please provide all of the following information with respect to any such document, so as to aid the Court and the parties hereto in determining the validity of the claim of privilege or other protection:

(a)     The identity of the person(s) who prepared the document and who signed the document, and over whose name it was sent or issued

(b)    The identity of the person(s) to whom the document was directed

(c)     The nature and substance of the document, with sufficient particularity to enable the Court and the parties thereto to identify the document

(d)    The date of the document

(e)     The identity of the person(s) who has (have) custody of, or control over, the document and each copy thereof

(f)     The identity of each person to whom a copy of the document was furnished

(g)    The number of pages of the document

(h)    The basis on which any privilege or other protection is claimed

(i)     Whether any non-privileged or non-protected matter is included in the document

DOCUMENTS TO BE PRODUCED

REQUEST FOR DOCUMENTS NO. 1:

Any and all documents which support, evidence, relate or otherwise pertain to any and all personnel policies of Defendant in effect from [date] to the present, including but not limited to:

(a)     Employee discipline policies, including but not limited to, counseling, written warnings, suspension, demotion, and termination policies

(b)    Sexual harassment policies 

(c)     Internal complaint or grievance procedures

(d)    Equal Employment Opportunity (EEO) policies

REQUEST FOR DOCUMENTS NO. 2:

Any and all documents relating to or evidencing any investigation by Defendant into Plaintiff’s internal complaint of sexual harassment to Defendant, including but not limited to:

(a)     Written statements of witnesses

(b)    Notes of interviews with witnesses

(c)     Tape recordings of any and all oral statements and/or interviews of witnesses

(d)    Transcriptions of any tape recordings of any and all oral statements and/or interviews of witnesses

(e)     Reports regarding the results of any and all investigations

(f)     Correspondence received from or sent to Plaintiff

(g)    Correspondence received from or sent to Defendant

(h)    Correspondence received from or sent to any person other than Defendant’s counsel

(i)     Documents relating to or evidencing discussions between Plaintiff and Defendant

(j)     Documents relating to or evidencing discussions between Defendant and any person other than Defendant’s counsel

(k)     Documents received from or sent to any person other than Defendant’s counsel

REQUEST FOR DOCUMENTS NO. 3:

Any and all documents which support, evidence, relate to, or otherwise reflect any action taken by Defendant in response to Plaintiff’s internal complaint of sexual harassment to Defendant.

REQUEST FOR DOCUMENTS NO. 4:

The complete personnel file of Plaintiff, including but not limited to, any documents, records, memoranda, notes, or computer printouts which were part of Plaintiff’s personnel file at any time.

REQUEST FOR DOCUMENTS NO. 5:

Any and all documents not included in Plaintiff’s personnel file which support, evidence, relate or otherwise pertain to Plaintiff’s employment with Defendant, including, but not limited to, documents relating to or reflecting job performance, awards to Plaintiff, or discipline of Plaintiff.

REQUEST FOR DOCUMENTS NO. 6:

The complete personnel file of Defendant [Name of Individual Defendant], including but not limited to, any documents, records, memoranda, notes, or computer printouts which were part of Defendant [Name of Individual Defendant]’s personnel file at any time.

REQUEST FOR DOCUMENTS NO. 7:

Any and all documents not included in Defendant [Name of Individual Defendant]’s personnel file which support, evidence, relate or otherwise pertain to Defendant [Name of Individual Defendant]’s employment with Defendant, including, but not limited to, documents relating to or reflecting job performance, awards, or discipline of Defendant [Name of Individual Defendant].

REQUEST FOR DOCUMENTS NO. 8:

Any and all documents submitted to and/or received from the U.S. Equal Employment Opportunity Commission which concern or relate in any way to Plaintiff’s charge of discrimination filed with said agency.

REQUEST FOR DOCUMENTS NO.9:

Any and all documents submitted to and/or received from the [State FEP agency] which concern or relate in any way to Plaintiff’s charge of discrimination filed with said agency.

REQUEST FOR DOCUMENTS NO.10:

Any and all documents submitted to and/or received from the [City] Police Department which concern or relate in any way to its investigation concerning Plaintiff’s claims against Defendant [Name of Individual Defendant].

REQUEST FOR DOCUMENTS NO.11:

Any and all employee handbooks which you gave to Plaintiff during her employment with you.

REQUEST FOR DOCUMENTS NO.12:

Any and all documents which support or evidence compensation paid to Plaintiff during her employment with you, including but not limited to, salary, bonuses, and commissions.

REQUEST FOR DOCUMENTS NO.13:

Any and all documents which support or evidence employee benefits which you provided to Plaintiff during her employment with you, including but not limited to, a description of plan benefits and/or plan handbooks, or pamphlets for profit-sharing plans, medical and dental insurance, retirement benefits, and life insurance.

REQUEST FOR DOCUMENTS NO.14:

Any and all documents which support, evidence, relate or otherwise pertain to any lawsuits, complaints, charges, or claims of sexual harassment made against Defendant (other than those filed by Plaintiff) from [date] to the present.

REQUEST FOR DOCUMENTS NO.15:

Any and all documents which support, evidence, relate or otherwise pertain to any lawsuits, complaints, charges, or claims of sex discrimination made against Defendant from [date] to the present.

REQUEST FOR DOCUMENTS NO.16:

Any and all documents which support, evidence, relate or otherwise pertain to any lawsuits, complaints, charges, or claims of sexual harassment made against Defendant [Name of Individual Defendant] (other than those filed by Plaintiff) from [date] to the present.

REQUEST FOR DOCUMENTS NO.17:

Any and all documents which support, evidence, relate or otherwise pertain to any lawsuits, complaints, charges, or claims of sex discrimination made against Defendant [Name of Individual Defendant] from [date] to the present.

REQUEST FOR DOCUMENTS NO.18:

Any and all documents which reflect or set forth Plaintiff’s job duties and responsibilities during her employment with you.

Dated: ____________________

[Signature block]


Elizabeth Hubbard is a partner in the firm of Pappas, Hubbard, O’Connor, Fildes, Secaras, P.C. with offices in Chicago and Rock Island, Illinois. The firm represents both plaintiffs and employers in employment discrimination and labor-related issues. Ms. Hubbard is a frequent speaker on employment discrimination issues. She was co-counsel on the case ofMarek v. Chesney, 473 U.S. 1 (1985), which established the parameters of Rule 68 offers of judgment. Ms. Hubbard has tried numerous jury trials to verdict in federal courts. She is the author ofLitigating Sexual Harassment & Sex Discrimination Cases, from which this article is excerpted.