By Meghan Droste, January 15, 2020
In addition to representing federal employees (and having the pleasure of teaching many courses with FELTG), I spend about half of my time representing private sector and local government employees. This gives me an interesting comparison of how attorneys and judges handle cases in federal court with how agency attorneys and administrative judges handle cases before the Commission. I am happy to report that the experience before the Commission is often more pleasant. Things (generally) move more quickly, although I know that might be difficult to imagine, and the formal complaint process creates a record from the start, avoiding some of the hassles of fighting over information in discovery.
There is one notable difference that makes things more difficult in the federal sector process and I hope you will indulge my moment on the soapbox discussing it. In several recent cases, I have found that agency attorneys are not producing emails from key witnesses as part of their document productions. I always ask for at least some emails in every case. I have yet to see a case where nothing was discussed over or sent by email. Unlike in my other types of cases, it seems that the attorneys on the other side in federal sector cases do not even think about checking with witnesses or even named harassers when gathering responsive documents. As a result, we end up spending unnecessary time on deficiencies letters and phone calls, and sometimes even motions to compel, to get documents that are clearly relevant to a complaint. If any of this sounds familiar to you, I strongly encourage you to reconsider your discovery practices.
As a quick reminder, the Commission considers discovery and the hearing process in general to be an extension of the investigation. That means that parties are entitled to obtain “relevant information” for a “reasonable development of evidence on issues raised in [a] complaint.” See EEOC Management Directive 110, Ch. 7, § IV(A)(1). If witnesses, harassers, or management officials have discussed the issues in the complaint (or, in some cases, engaged in harassment) by email, those emails are relevant. You should be issuing litigation holds to anyone who might have relevant information at the outset of a case and also gathering emails from them as part of your normal litigation practice. Even if a complainant does not request emails in discovery, you should still be gathering them for yourself so you know what is out there and to avoid any surprises when witnesses testify during a deposition or at hearing. Droste@FELTG.com