Originally from Dispute Resolution Journal

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GENESIS OF THE EMPLOYMENT DISCOVERY PROTOCOLS

The Advisory Committee on Civil Rules, responsible for promulgation of the Federal Rules of Civil Procedure, was worried about the high costs and inefficiency of litigation, particularly discovery, in our federal courts. As a first step to do something about it, those leading the Committee decided to get the views of all sides, in those fields where the federal court was a primary forum for dispute resolution. Almost 100 lawyers, judges, and academics attended a conference in 2010 held at Duke Law School to discuss possible improvements and solutions.

I was granted 15 minutes to speak, so I spoke about inefficiencies in initial discovery in employment cases. I outlined the “standard” process for initial discovery. Once requests to produce and interrogatories were served, there was a request for an additional 30 days to respond that was always granted. Once there were responses, objections often dwarfed answers provided and documents produced, requiring meet and confer sessions often followed by Motions to Compel. With more extensions of time for briefing, and with the time the judge needed for a decision, cases five or six months into litigation often had gone nowhere. These tactical decisions to delay were not confined to one side of the litigation; when delay was perceived as a help to a client, this form of delay was easy to use.

My suggested solution to help resolve this very frustrating problem was to consider mandating initial discovery that would not be subject to objection. Mandatory discovery had been working in Connecticut for personal injury cases for many years, and I perceived no reason why it would not work for employment cases.