“Is she dead yet?” Simultaneous feelings of excitement and disgust ran through me as I read this line while reviewing pages and pages of email correspondence amongst employees of a major corporate defendant. The particular email was sent from a co-worker of my client to his supervisor and was sent on the very same day that my client, a hard-working, dedicated young woman, was terminated in retaliation for speaking up about the preferential treatment provided to male employees in the work-place. The line clearly referred to my client’s termination and I was excited because it would provide critical inferential evidence that her male co-workers were favored by her boss. I was disgusted because of the callous indifference this young man showed to his co-worker who needed this job as much, if not more, than he did.

My excitement only grew as I began reading email drafts of a memo the supervisor provided to my client just prior to her termination. When the first responsive documents were provided by defendants, it contained a well-written memo which was clearly designed to establish a paper trail justifying the termination. It was the type of document that, standing alone, would leave the reader with little doubt that my client was a horrible employee who deserved to be fired.

There was only one problem, the memo could scarcely have been said to be written by her supervisor. Indeed, in reviewing the email which contained the first draft of the memo, it was apparent that he had trouble stringing two coherent sentences together and was struggling for a convincing reason to show that my client had done something wrong. As the email trail went back and forth between supervisor and subordinate, the truth emerged, the memo was actually written by my client’s male co-worker and bolstered our case that he was one of the men who received preferential treatment on the basis of his gender.

The fact that I received these documents in litigation is attributable to one reason only: I made a successful motion to compel early on in the case. Albeit, the motion was on a different issue, the defendant’s counsel nonetheless realized that I would make good on my subsequent promise to file a motion to compel to obtain all emails concerning my client and that I would follow up with a Notice of Inspection to have an expert search Defendant’s computers for all emails pertaining to my client. It was not long after that the old adage of “be careful what you ask for,” came true as I received several boxes containing thousands of pages of sometimes repetitive email trails. However, those boxes might as well have contained buried treasure as I was able to cull together an extremely convincing case of gender discrimination by reviewing each incriminating email which was hidden among countless innocuous email exchanges.

In order to successfully litigate an employment discrimination case, a Plaintiff’s attorney inevitably has to file a motion to compel. It is advisable to file a motion to compel early in the case so that you can utilize the evidence obtained in cross-examination of witnesses during deposition. Filing a successful motion to compel will also give you leverage in persuading opposing counsel to voluntarily produce documents even if he or she knows they will be harmful to their case.

It is critical to serve a Request for Production of Documents at the earliest opportunity. Pursuant to California Code Civil Procedure Section 2011.020, Plaintiff may serve a Request for Production of Documents ten days after the service of the Summons and Complaint on the defendant. The requests should be specifically tailored to your case and should always include requests for production of the personnel files, prior complaints, investigatory files and communications, including emails, on all topics which are in any way relevant to your case.

Once the defendant responds to the Request, it is imperative to write a detailed meet and confer letter as soon as possible. The parties must meaningfully meet and confer prior to filing a motion to compel. Calendaring the forty-five day deadline to file your motion to compel is also critical. (Code Civ. Proc § 2031.310(c)). If opposing counsel indicates a willingness to meet and confer by providing supplemental responses and producing more documents, always obtain and confirm in writing a specific date for an extension of time on that deadline, so you have time to prepare the motion if necessary. This is true even if the defendant agrees to provide supplemental responses, which permits the forty-five day deadline to begin anew. Otherwise, if the defendant fails to supplement all responses in issue, a mercurial judge may hold that you have blown the deadline even when the opposing party has breached an agreement to supplement a particular response.

However, there are times when opposing counsel will stonewall just prior to the deadline. All of a sudden telephone calls are not being returned or, if they are, it’s a voice mail message left well after normal business hours. There are defense counsel who will make the calculated gamble that you will not file that

motion to compel. When this occurs its necessary to make them pay for that gamble by filing the motion to compel and requesting sanctions for their failure to meaningfully participate in the meet and confer process.

Of course, when you are up against a deadline, its hard to reinvent the wheel, let alone navigate the complex case law which is involved in some of the privileges asserted by defense counsel. Thus, this article addresses some of the common issues which arise in employment cases with citations to case law which should assist all of us in finding where the bodies are figuratively buried in our cases.

Obtain the investigation

Most defense counsel will voluntarily turn over the employer’s investigation into your client’s complaint of discrimination or harassment because a company’s investigation and appropriate corrective action is a defense to co-worker harassment and can limit your client’s liability if the harasser is a supervisor. Nonetheless, there are times when defendants will try to hide documents which pertain the investigation and, in those instances, you can be sure that something valuable is contained in those documents. Moreover, it is crucial to carefully review any documents you receive and rigorously depose all witnesses to make sure that the defense is not merely providing you with self-serving documents while concealing witness statements or other documentary evidence which can be helpful to your case.

Once you have met and conferred and relevant documents are not forthcoming, California law strongly supports compelling the production of all documents pertaining to the corporate defendant’s investigations into allegations of discrimination and harassment. A common road block placed by defendants is to claim that the investigation was conducted by an attorney and, thus, protected by the attorney-client privilege. However, In Wellpoint Health Networks, Inc. v. Superior Court, (1997) 59 Cal.App.4th 110, 129, the California Supreme Court stated “if defendants’ answer or discovery responses indicate the possibility of a defense based on thorough investigation and appropriate corrective response, … a finding of waiver [of the attorney-client privilege can] be made.”

So long as your client complained of the harassment, the company is under an obligation to investigate and take appropriate corrective action based on the fact that California Government Code Section 12940(j)(1) states, in relevant part: “(h)arassment of an employee, … shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” Accordingly, its hard to imagine a scenario where the employer will not claim that it investigated and responded appropriately once a complaint is made.

In fact, “[t]he FEHA makes it a separate unlawful employment practice for an employer to ‘fail to take all reasonable steps to prevent discrimination and harassment from occurring.'” State Department of Health Services v. Superior Court, (2003) 31 Cal.4th 1026, 1040. (citing Government Code § 12940(k)). Thus, all documents pertaining to the investigation of complaints of harassment and discrimination should be relevant to show whether the employer took reasonable steps to prevent discrimination and harassment, which necessarily will include a reasonable policy of investigation and taking corrective action in response to such complaints.

Similarly, while an employer is strictly liable for hostile environment sexual harassment by a supervisor, the employer can proffer the “avoidable consequences” defense to decrease damages if the employee failed to report the harassment. However, “it reduces those damages only if, taking into account of the

employer’s anti-harassment policies and procedures and its past record of acting on harassment complaints, the employee acted unreasonably in not sooner reporting the harassment to the employer.” State Department of Health Services, supra, 31 Cal.4th at 1049.

Using this theory, you can not only obtain all documents pertaining to the investigation of your client’s complaints, you can also compel the production of documents pertaining to the investigations of other complaints of harassment or discrimination. In State Department of Health Services, supra, 31 Cal.4th at 1045-46, the California Supreme Court emphasized, “Evidence potentially relevant to the avoidable consequences defense includes anything tending to show that the employer took effective steps ‘to encourage victims to come forward with complaints of unwelcome sexual conduct and to respond effectively to their complaints. . . . ‘[I]f an employer has failed to investigate harassment complaints, [or] act on findings of harassment, or, worse still, [has] retaliated against complainants, future victims will have a strong argument that the policy and grievance procedure did not provide a ‘reasonable avenue’ for their complaints. [emphasis added]”

When the decision of State Department of Health Services was issued, Plaintiffs’ employment attorneys across the State were relieved that the California Supreme Court departed from the federal rule which provides employers a complete affirmative defense to liability for supervisor harassment. Instead, under California law, at most, an employer’s affirmative defense can limit Plaintiff’s damages. An unexpected additional advantage of that decision is that Judges should permit wide-ranging discovery of the employer’s past response to harassment complaints.

DeSimone CAALA discovery article

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