University of Denver

Federal Judicial Center Releases Second Report on Employment Protocols

Senior Director
IAALS Intern

Last October, the Federal Judicial Center (FJC) released a report titled, “Initial Discovery Protocols for Employment Cases Alleging Adverse Action.” This is the FJC’s second report on the Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action, which sets forth a set of pattern discovery protocols developed by a task force of plaintiff and defense attorneys working in conjunction with IAALS. The intent of the protocols is to “encourage parties and their counsel to exchange the most relevant information and documents early in the case, to assist in framing the issues to be resolved and to plan for more efficient and targeted discovery.”

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Since the Employment Protocols were established in 2011, about 75 judges across the country have adopted them in the adverse action employment cases before them. FJC researchers compared the 869 pilot cases identified for analysis to the 873 cases randomly selected from a pool of carefully chosen comparison cases. The 873 comparison cases were chosen for the pool based on the nature of the suit, the origin, the disposition type, the year of filing, and the judge; these parameters ensured the pilot cases were compared to similar cases that did not implement the protocols.

Key findings include:

  • Overall, pilot cases did not terminate faster than randomly selected comparison cases that were similar in disposition types to the pilot cases.
  • In terms of overall disposition times, employment discrimination cases take about 10–11 months to resolve, at the median.
  • The case disposition types for pilot cases and comparison cases were very similar.
  • The average number of discovery motions filed in pilot cases was lower than the average number of discovery motions filed in comparison cases.

The Employment Protocols were the first set of Initial Discovery Protocols that IAALS facilitated. In 2018, IAALS released a second set of protocols for Fair Labor Standards Act Cases Not Pleaded as Collective Actions, and in February of this year, IAALS released a third set for First-Party Insurance Property Damage Cases Arising From Disasters.

Read the full FJC 2018 Report on the Employment Protocols here.