Discovery in Employment Cases

Under the direction of the Standing Committee and the Civil Rules Advisory Committee and with the assistance of IAALS, a diverse group of employment lawyers worked together to develop Initial Discovery Protocols for Employment Cases Alleging Adverse Action.

The Protocols were presented to the Civil Rules Advisory Committee in November 2011 and approved for implementation in pilot projects across the nation, in the courtrooms of judges who wish to participate. The protocols create a new category of information exchange, replacing initial disclosures with initial discovery specific to these cases.

IAALS continues to monitor use of the protocols in jurisdictions around the country, and the FJC issued a formal report on the pilot project in October 2015. The Report on Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action includes several key findings, including: there was generally less motions activity in pilot cases than in comparison cases, the average number of discovery motions filed were about half, both motions to dismiss and motions for summary judgment were less likely to be filed, and the pilot cases appear to be more likely to settle. The study found that there was not a significant difference in case processing times. One take away may be that judges need to pair these protocols with a modified case management schedule, including an earlier discovery deadline, in order to see the full effect of such reforms.

A modified version of the protocols are also being used to further mediation in the Southern District of New York. That court issued an Order in October of 2015 that requires all counseled employment discrimination cases, except those under the FLSA, to be automatically referred to a mediation program. As part of the mediation program, the parties must engage in an early exchange of documents in order to frame the issues for mediation.

Click here to download the Discovery Protocols.