How to Handle an Employment Discrimination Case … to Handle an Employment Discrimination...

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How to Handle an Employment Discrimination Case Day One May 12, 2014; 6:00 PM – 9:00 PM

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HOW TO HANDLE AN

EMPLOYMENT DISCRIMINATION CASE

DAY ONE Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

scheduled for May 12, 2014

Program Chair: Louis Pechman, Berke-Weiss and Pechman LLP

Faculty: Karen Cacace, The Legal Aid Society; Alan Serrins, Serrins Fisher LLP;

Stephen E. Tisman, Blank Rome LLP

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 3 Transitional and Non-Transitional credit hours:1 Skills; 1 Professional Practice and 1 Ethics.

This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 3 hours of total CLE credits. Of these, 1 qualifies as an hour of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law.

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Information Regarding CLE Credits and Certification

How to Handle an Employment Discrimination Case Day One May 12, 2014; 6:00 PM to 9:00 PM

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New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

How to Handle an Employment Discrimination Case Monday, May 12, 2014; 6:00 PM to 9:00 PM

Day One

Program Chair: Louis Pechman, Esq. Berke-Weiss & Pechman LLP Faculty: Karen Cacace, Esq., The Legal Aid Society Alan Serrins, Esq., Serrins Fisher LLP Stephen E. Tisman, Esq., Blank Rome LLP

AGENDA 5:30 PM – 6:00 PM Registration 6:00 PM – 6:10 PM Introduction and Announcements 6:10 PM – 6:50 PM Overview of Agency Practice; Drafting a Complaint/Answer Karen Cacace, Esq. 6:50 PM – 7:30 PM Discovery Tips from Plaintiff's Perspective Alan Serrins, Esq. 7:30 PM – 7: 40 PM BREAK 7:40 PM – 8:20 PM Discovery Tips from the Defendant's Perspective Stephen E. Tisman, Esq. 8:20 PM – 8:50 PM Questions and Answers

NAT ASHA VELEZ, Plaintiff,

vs.

CHIPOTLE MEXICAN GRILL, INC; CHIPOTLE SERVICES, LLC; and CHIPOTLE MEXICAN GRILL OF COLORADO, LLC,

Defendants.

COMPLAIN

JURY TRIAL DEMANDED

Plaintiff, Natasha Velez, by and through her attorneys, The Legal Aid Society and

Friedman Kaplan Seiler & Adelman, LLP, alleges and states as follows:

PRELIMINARY STATEMENT

1. Natasha Velez, a domestic violence victim, brings this action for domestic

violence and disability discrimination against her former employer, Chipotle Mexican Grill, Inc.

(and its subsidiaries Chipotle Services, LLC and Chipotle Mexican Grill of Colorado, LLC

(referred to collectively, with Chipotle Mexican Grill, Inc., as "Chipotle")), for firing her in

violation ofthe New York State Human Rights Law, N.Y. Exec. Law§§ 290 et seq.

("NYSHRL"), and the New York City Human Rights Law, N.Y. City Admin. Code§§ 8-101 et

seq. ("NYCHRL").

2. Ms. Velez worked as a "crew member" at a Chipotle restaurant located in New

York, New York. Ms. Velez's job duties included, among other things, manual food preparation,

food and drink services, customer service, and working the cash register.

3. On January 1, 2013, Ms. Velez was the victim of a domestic violence incident

wherein she was assaulted by her then-boyfriend, who choked and threatened her, fracturing her

left index finger in the process. Following the assault, Ms. Velez promptly sought medical

treatment at a nearby emergency room where her finger was splinted and she was referred to a

hand surgery clinic for a follow-up evaluation.

4. On her next scheduled workday, Ms. Velez arrived at Chipotle early, with her

finger still splinted, and told her manager that she had been a victim of a domestic violence

incident. Ms. Velez showed her manager, who was already aware that Ms. Velez was in a

violent domestic relationship, both a copy of the police report she had filed regarding the

incident, as well as documentation ofher emergency room visit, and told him she had scheduled

an upcoming appointment to have her finger evaluated.

5. Ms. Velez's doctors determined that she was unable to return to work until

January 28, 2013. When Ms. Velez returned to Chipotle, she showed her manager a copy of an

order of protection she had been granted earlier that same day, prohibiting her assailant from

entering Ms. Velez's place of employment. In response, Ms. Velez's manager told her that she

had "too many issues outside of work" and fired her.

6. By this action, Ms. Velez seeks to recover damages caused by Chipotle's

unlawful conduct, including compensation for her lost wages and emotional distress, punitive

damages, attorneys' fees, and costs.

JURISDICTION AND VENUE

7. The Court has jurisdiction over each of Plaintiffs claims pursuant to 28 U.S.C.

§ 1332(a). The parties are completely diverse in citizenship and the amount in controversy

exceeds $75,000.

8. Venue lies in this judicial district pursuant to 28 U.S.C. § 1391(b) as this action

arose, in substantial part, within the Southern District ofNew York, where the unlawful practices

alleged herein occurred.

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9. Contemporaneously with the filing ofthis complaint, Ms. Velez served a copy

upon the New York City Commission on Human Rights and the Office ofthe Corporation

Counsel of the City of New York, thereby satisfying the notice requirements of Section 8-502( c)

ofthe New York City Administrative Code.

PARTIES

10. PlaintiffNatasha Velez is an individual who currently resides and at all relevant

times resided in Manhattan, in the State ofNew York.

11. Ms. Velez is a "domestic violence victim" within the meaning ofthe NYSHRL,

and a "victim of domestic violence" within the meaning of the NYCHRL. Ms. Velez is also an

individual with a "disability" within the meaning of the NYSHRL and the NYCHRL, and until

the termination of her employment, was an "employee" of Chipotle.

12. Defendant Chipotle Mexican Grill, Inc. is a Delaware corporation with its

principal place ofbusiness in Denver, Colorado.

13. Upon information and belief, Defendants Chipotle Services, LLC (formerly

known as CMG Service Co., LLC) and Chipotle Mexican Grill of Colorado, LLC are

subsidiaries of Chipotle Mexican Grill, Inc. and are Colorado limited liability companies having

their principal places of business in Denver, Colorado.

14. Upon information and belief, Defendants operate over 1,500 Chipotle Mexican

Grill restaurants throughout the United States. Defendants are each registered to do business in,

and, upon information and belief, presently operate over 80 restaurants in, the state of New York.

15. Upon information and belief, Chipotle owns and operates a restaurant located at

281 Broadway, New York, NY, 10007, and a restaurant located at 1497 Third Avenue, New

York, NY, 10028.

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16. Upon information and belief, Chipotle employs approximately 45,000 individuals

and is therefore an "employer" as defined by the NYSHRL and the NYCHRL.

FACTUAL ALLEGATIONS

17. In or around April 2012, Ms. Velez was hired as a "crew member" at the Chipotle

restaurant located at 281 Broadway, New York, NY, 10007. She earned $8.50 per hour. Her

job duties required the use of both her hands in a fast-paced work environment, including manual

food preparation (i.e., chopping vegetables, preparing guacamole, and other similar

responsibilities), food and drink service, customer service, and working the register. Ms. Velez

was also occasionally required to lift heavy boxes.

18. In or around September 2012, Ms. Velez was transferred to the Chipotle

restaurant located at 1497 Third Avenue, New York, NY, 10028, and given a raise to $9.00 per

hour, although her job title and duties stayed the same.

19. Ms. Velez's manager at the Third Avenue Chipotle restaurant, Delmas (last name

unknown), was aware that Ms. Velez was in a violent domestic relationship. In or around

December 2012, Ms. Velez's then-boyfriend came to the Third Avenue Chipotle restaurant

during her shift, asking for her. Ms. Velez told Delmas that her then-boyfriend had been violent

with her in the past, that she did not want to speak to him, and requested that Delmas ask him to

leave the restaurant. Delmas agreed to ask but said that he could not "make" the former

boyfriend leave.

20. On January 1, 2013, Ms. Velez was the victim of a domestic violence incident,

recorded in a police report, wherein her then-boyfriend choked and threatened her in her home.

As a result of the incident, Ms. Velez suffered, among other things, a fracture to her left index

finger. She called the police and sought prompt medical attention for her injuries at a nearby

emergency room, where she was provided a finger splint and prescribed pain medication. Her

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treating physician also advised her to keep the splint on until she could attend a follow-up

appointment at a hand surgery clinic, which was scheduled on January 14, 2013 (the clinic's next

available appointment date).

21. Ms. Velez's next scheduled work day at Chipotle was January 7, 2013. On that

day, she went to her workplace before her shift was to start and spoke with Delmas. She told

Delmas about the domestic violence incident that had transpired on January 1, 2013, including

that her then-boyfriend had assaulted her and broken her finger, which was now wrapped in a

splint. Ms. Velez showed Delmas the police report from the incident as well as a record of her

visit to the emergency room, and she informed him that she would need to be out of work until at

least January 14, 2013, when her next doctor's appointment was scheduled. Delmas responded

that Ms. Velez should bring a doctor's note to Chipotle after her January 14, 2013 appointment.

22. On January 14, 2013, Ms. Velez attended her follow-up appointment at the hand

surgery clinic (still wearing a finger splint) and received a referral for physical therapy. Ms.

Velez's doctor also gave her a note stating that she would be unable to work until January 28,

2013. Ms. Velez brought this note on that same day to Delmas at Chipotle, who said that she

should return to Chipotle on January 28, 2013, pursuant to her doctor's instructions.

23. On January 23, 2013, Ms. Velez attended her physical therapy appointment and

was told she could remove the finger splint on her left index finger going forward.

24. On January 28, 2013, Ms. Velez obtained an order of protection against the man

who had assaulted her on January 1, 2013 (the "Order"). The Order prohibited, among other

things, the assailant from appearing at Ms. Velez's home, school, or place of employment. Ms.

Velez sought this order of protection in part because, as noted, she wanted to make sure that he

could not come to her workplace asking for her, as he had done in the past.

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25. Later on January 28, 2013, Ms. Velez, now ready and able to work, went to her

workplace to get her upcoming work schedule, as per Delmas' earlier instructions. When she

arrived, however, Delmas said he needed to speak to her. Ms. Velez then showed Delmas the

Order. Delmas, in response, told Ms. Velez that she had "too many issues outside work" and

terminated her employment, effective immediately. Ms. Velez pleaded with Delmas not to fire

her, but he responded that there was "nothing he could do."

26. By engaging in the conduct described above, Chipotle discriminated against Ms.

Velez on the basis of her actual and/or perceived status as a domestic violence victim, including

by terminating her employment.

27. By engaging in the conduct described above, Chipotle also discriminated against

Ms. Velez on the basis ofher actual and/or perceived disability, including by terminating her

employment.

28. As a result of her termination, Ms. Velez has experienced significant emotional

distress, including sleeplessness, crying, depression, anxiety, and feelings of despair and

hopelessness. Through its agent, Delmas, Chipotle knew or should have known that terminating

Ms. Velez's employment because of her status as a domestic violence victim and/or because of

her disability would cause Ms. Velez to suffer such distress.

First Count

Violation of the New York State Human Rights Law, N.Y. Exec. L. § 296 (Domestic Violence Victim Status)

29. Ms. Velez incorporates the preceding paragraphs by reference.

30. Ms. Velez is a "domestic violence victim" as defined by Section 292(34) ofthe

NYSHRL in that she is a victim of an act that would constitute a family offense pursuant to

Section 812(1) ofthe Family Court Act, and her employer knew her to be as such.

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31. The NYSHRL provides that "it that shall be an unlawful discriminatory practice

for an employer" to discharge an employee on the basis of his or her "domestic violence victim

status." N.Y. Exec. L. § 296(l)(a).

32. Chipotle violated the NYSHRL, including by terminating Ms. Velez's

employment because of her status as a domestic violence victim.

33. Ms. Velez has been, and continues to be, damaged as a result ofChipotle's

unlawful acts, including past and future lost wages and benefits, and past and future physical and

emotional distress.

Second Count

Violation of the New York City Human Rights Law, N.Y. City Admin. Code§ 8-107.1 (Domestic Violence Victim Status)


3 5. Ms. Velez is a "victim of domestic violence" as defined by Section 8-1 07.1 (b) of

the NYCHRL, and her employer knew and/or perceived her to be as such.

36. The NYCHRL provides that "[i]t shall be an unlawful discriminatory practice for

an employer, or an agent thereof, ... to discharge from employment, or to discriminate against

an individual in compensation or other terms, conditions, or privileges of employment because of

the actual or perceived status of said individual as a victim of domestic violence." N.Y.C.

Admin. Code§ 8-107.1(2). Additionally, employers "shall make reasonable accommodation to

enable a person who is a victim of domestic violence ... to satisfy the essential requisites of a

job provided that the status as a victim of domestic violence ... is known or should have been

known" by the employer. !d.§ 8-107.1(3)(a).

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37. Chipotle violated the NYCHRL, including by terminating Ms. Velez's

employment because of her actual and/or perceived status as a domestic violence victim, and/or

by failing to make reasonable accommodations.

38. Ms. Velez has been, and continues to be, damaged as a result ofChipotle's


emotional distress, and the attorneys' fees and costs of bringing this action.

39. Chipotle's intentional and unlawful conduct constitutes a malicious and/or

recklessly indifferent violation of Ms. Velez's rights under the NYCHRL and therefore entitles

Ms. Velez to an award of punitive damages pursuant to Section 8-502(a) of the NYCHRL.

Third Count

Violation of the New York State Human Rights Law, N.Y. Exec. L. § 296 (Disability Discrimination)


41. Ms. Velez's physical or medical impairment(s) as described in this Complaint,

suffered as a result of a domestic violence incident, constitute a disability within the meaning of

Section 292(21) of the NYSHRL, and/or were regarded by her employer to constitute such a

disability. !d.

42. The NYSHRL provides that "it that shall be an unlawful discriminatory practice

for an employer ... to discharge from employment" any individual on the basis of that

individual's "disability," and to "refuse to provide reasonable accommodation to the known

disabilities of an employee." N.Y. Exec. L. §§ 296(1)(a), 296(3)(a).

43. Chipotle violated the NYSHRL, including by terminating Ms. Velez's

employment because of her actual and/or perceived disability, and/or by failing to accommodate

Ms. Velez's actual and/or perceived disability.

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44. Ms. Velez has been, and continues to be, damaged as a result of Chipotle' s


emotional distress.

Fourth Count

Violation of the New York City Human Rights Law, N.Y. City Admin. Code§ 8-107 (Disability Discrimination)


46. Ms. Velez's physical or medical impairment(s) as described in this Complaint,

suffered as a result of a domestic violence incident, constitute a disability within the meaning of

Section 8-102(16) of the NYCHRL, and/or were perceived by her employer to constitute such a

disability.

47. The NYCHRL provides that "[i]t shall be an unlawful discriminatory practice

[f]or an employer or an employee or an agent thereof, because of the actual or perceived ...

disability ... of any person, ... to discharge from employment such person or to discriminate

against such person in compensation or in terms, conditions or privileges of employment."

N.Y.C. Admin. Code§ 8-107(1)(a). The NYCHRL further requires employers to "make

reasonable accommodations to enable a person with a disability to satisfy the essential requisites

ofajob." !d.§ 8-107(15)(a).

48. Chipotle violated the NYCHRL, including by terminating Ms. Velez's

employment because of her actual and/or perceived disability, and/or by failing to accommodate

Ms. Velez's actual and/or perceived disability.

49. Ms. Velez has been, and continues to be, damaged as a result of Chipotle' s

unlawful acts, including the loss of past and future wages and benefits, and past and future

physical and emotional distress, and the attorneys' fees and costs of bringing this action.

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50. Chipotle's intentional and unlawful conduct constitutes a malicious and/or

recklessly indifferent violation of Ms. Velez's rights under the NYCHRL and therefore entitles

Ms. Velez to an award of punitive damages pursuant to Section 8-502(a) of the NYCHRL.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court:

51. Declare that the acts complained of herein constitute violations of the NYSHRL

and the NYCHRL;

52. Order Defendants to compensate Plaintiff for her damages, including her past and

future loss of wages and benefits, and her past and future physical and emotional distress;

53. Reinstate Plaintiff to a position comparable to her former position or, in lieu of

reinstatement, award her front pay;

54. Enter judgment in favor ofPlaintifffor such amount as may be awarded for

punitive damages;

55. Award to Plaintiff all costs and reasonable attorneys' fees incurred in connection

with this action;

56. Award to Plaintiff such interest as is allowed by law; and

57. Grant such additional or alternative relief as may appear to this Court to be just

and equitable.

JURY DEMAND

Plaintiff demands a trial by jury.

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Dated: New York, New York April 14, 2014

FRIEDMAN KAPLAN SEILER & ADELMANLLP

Je~~Of:?i Andrew M. Englander, Of Counsel 7 Times Square New York, NY 10036-6516 (212) 833-1100

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Scott Rosenberg, General Counsel Adriene Holder, Attorney-in-Charge,

Civil Practice Karen Cacace, Supervising Attorney,

Employment Law Unit Katherine Greenberg, Of Counsel THE LEGAL AID SOCIETY 199 Water Street, 3rd Floor New York, New York 10038 Telephone: (212) 577-3300

Attorneys for Plaintiff Natasha Velez

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HOW TO HANDLE AN

EMPLOYMENT DISCRIMINATION CASE

SAMPLE – PLAINTIFFS’ DISCOVERY REQUESTS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK [PLAINTIFFS’ NAMES], individually and on behalf of others similarly situated,

Plaintiffs,

-against- [DEFENDANTS’ NAMES],

Defendants.

Case No.:

PLAINTIFFS’ FIRST REQUEST FOR DOCUMENTS TO DEFENDANTS

To: OPPOSING COUNSEL

PLEASE TAKE NOTICE THAT, pursuant to Rules 26 and 34 of the Federal

Rules of Civil Procedure and Rule 26.3 of the Local Civil Rules of the Southern District

of New York, Plaintiffs _____________ (“Plaintiff Name,”) __________ (“Plaintiff

Name,”) and __________ (“Plaintiff Name”) (collectively “Plaintiffs,”) by and through

their attorneys, Serrins Fisher LLP, hereby demand the items enumerated herein be

produced by Defendants ________________ (“Defendant Name”) ____________

(“Defendant Name”) and _________________ (“Defendant Name”) (collectively

“Defendants”) in accordance with the definitions and instructions stated herein, within

thirty (30) days of service hereof, at Serrins Fisher LLP, 233 Broadway, Suite 2340, New

York, New York 10279, and that Serrins Fisher LLP, as attorneys for Plaintiffs, be

permitted to discover, inspect, test, photocopy, and/or photograph all items produced by

Defendants pursuant to this notice.

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DEFINITIONS AND INSTRUCTIONS

A. All definitions and rules of construction set forth in both Rule 34 of the

Federal Rules of Civil Procedure and the Local Civil Rules of the Southern District of

New York shall apply to the Requests herein.

B. “Plaintiffs” refers collectively to [PLAINTIFFS’ NAMES], and each of

them, and shall include their agents, attorneys and representatives.

C. “Defendants” refers collectively to [DEFENDANTS’ NAMES], and each

of them, and shall include their officers, directors, employees, partners, corporate parent,

subsidiaries or affiliates.

D. “Person” is defined as any natural person or any legal entity, including,

without limitation, any business or governmental entity or association.

E. “Documents” include any designated documents or electronically stored

information – including writings, drawings, graphs, charts, photographs, sound

recordings, images and other data or data compilations – stored in any medium from

which information can be obtained either directly or, if necessary, after translation by the

responding party into a reasonably usable form. This includes all documents for which

privilege is claimed. If copies, reproductions or facsimiles of a document are not

identical by reason of handwritten notations, initials, identification marks or any other

modification, each such non-identical copy is a separate document within the meaning of

this definition.

F. “Communication” is defined as the transmittal of information (in the form

of facts, ideas, inquiries or otherwise).

G. “Date” means the exact day, month, and year, if ascertainable, or, if not,

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Defendants’ best approximation thereof.

H. “Concerning” means relating to, referring to, describing, evidencing or

constituting.

I. “And”/”Or” shall be construed either disjunctively or conjunctively as

necessary to bring within the scope of the discovery request all responses that might

otherwise be construed to be outside of its scope.

J. “All”/”Any”/”Each” shall each be construed as encompassing any and all.

K. The use of the singular form of any word includes the plural and vice

versa.

L. The term “identify” means:

(i) when used with respect to a person, to give, to the extent known:

(a) the person’s full name; and

(b) present or last known address.

(ii) when used with respect to a natural person, to give, to the extent

known:

(a) the person’s full name;

(b) present or last known address; and

(c) present or last known place of employment.

(iii) when used with respect to a business, legal or governmental entity

or association, to give, to the extent known:

(a) the business, legal or governmental entity or association’s

legal name;

(b) the location of the business, legal or governmental entity or

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association’s principal place of operation and main

telephone number; and

(c) the business, legal or governmental entity or association’s

owner(s).

(iv) when used with respect to a document as defined herein, to give, to

the extent known:

(a) the type of document;

(b) general subject matter;

(c) date of the document; and

(d) author(s), addressee(s) and recipient(s).

(v) when used with reference to a communication, to state:

(a) the date when and place where such communication

occurred;

(b) the means of communication (e.g., telephone, writings,

correspondence, personal conversations, meetings, etc.);

(c) the identity of the participants and witnesses; and

(d) the substantive information communicated.

M. Once a person has been identified in accordance with this subparagraph,

only the name of that person need be listed in response to subsequent discovery

requesting the identification of that person.

N. When responding to the following Requests please specify which

documents are responsive to each Request and, where appropriate, to each sub-part

thereof.

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O. Should Defendants assert a claim of privilege or work product for any

communications or documents about which information or inspection is requested, and a

complete answer is not provided on the basis of such assertion, identify the nature of the

privilege being claimed and provide the following information without causing disclosure

of the allegedly privileged information:

(i) a brief description of the subject matter of the document or

communication;

(ii) date of the document or communication;

(iii) recipient(s) of the document or communication; and

(iv) the grounds on which the claim of privilege or work product rests.

P. In the context of a Request or a response thereto, whenever necessary to

bring within the scope of the Request information that would otherwise be excluded

therefrom, the singular shall mean plural, and the masculine gender shall mean the

feminine, and vice versa.

Q. If you object to any portion of a Request, provide information as to those

portions of the Request to which you do not object. For those portions of any Request to

which you object, state in detail the reason for such objection.

R. If you cannot answer any of the following Requests in full after exercising

due diligence, so state and answer the Request to the fullest extent possible, specifying

your inability to answer the remainder and stating whatever information or knowledge

you have concerning the unanswered portions.

S. Each Request not only calls for information known to Defendants, but also

calls for all information available to Defendants through reasonable inquiry, including

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inquiry of Defendants’ respective representatives and agents.

T. The relevant time period, unless otherwise stated, shall be from the time

[Company Name] opened to present, and shall include all documents and information

which relate in whole or in part to such period, or to events or circumstances during such

period.

U. These Requests are of a continuing nature. If after service of Defendants’

response, Defendants obtain additional information responsive thereto, they shall

promptly supplement or amend their response in accordance with Rule 26(e) of the

Federal Rules of Civil Procedure.

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DOCUMENT REQUESTS

1. PLAINTIFFS’ PERSONNEL DOCUMENTS: Each Plaintiff’s

personnel file and all other documents regarding each Plaintiff’s employment with

Defendants, including, but not limited to, documents concerning:

a. Each Plaintiff’s application for employment;

b. Defendants’ job interview of each Plaintiff, if any, before she

was hired;

c. Defendants’ offer of a job to each Plaintiff;

d. Each Plaintiff’s acceptance of employment with Defendant

[Name];

e. The terms and conditions of each Plaintiff’s employment;

f. Each Plaintiff’s job performance, including evaluation(s)

and/or performance reviews; commendations or awards;

“good-job” letters; and memos of comment or criticism;

g. Each Plaintiff’s disciplinary history, including, but not limited

to, warning notices, if any;

h. Each Plaintiff’s salaries, raises, bonuses and fringe benefits;

i. Complaints regarding each Plaintiff or her work performance

and any warning notices issued to each Plaintiff regarding such

complaints;

j. Each Plaintiff’s demotions, promotions, transfers and/or

changes of position, if any;

k. Each Plaintiff’s IRS Form(s) W-4;

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l. Each Plaintiff’s IRS Form(s) W-2 for each year worked since

2008;

m. Any alleged contracts or agreements entered into between each

Plaintiff and Defendants; and

n. Each Plaintiff’s cessation of employment with Defendants.

2. REPLACEMENT EMPLOYEES: All documents concerning the

interview, selection, hiring and terms and conditions of employment of the individual

who replaced each Plaintiff with Defendant [Name].

3. ORGANIZATIONAL CHARTS: All organizational charts or

documents demonstrating the reporting structure for each Plaintiff (i.e., to whom Plaintiff

reported) during her employment with Defendants.

4. JOB DESCRIPTIONS: Job descriptions for:

a. Defendant _________;

b. Defendant _________;

c. ______________; and

d. Each Plaintiff.

5. DEFENDANT [NAME]: Documents concerning Defendant

[Name], including, but not limited to:

a. Documents concerning claims or complaints of wage and hour

violations made against Defendant [Name] by Defendants’

current or former employees;

b. Documents concerning claims or complaints of discrimination

and/or harassment made against Defendant [Name] by

9

Defendants’ current or former employees from January 2008 to

present;

c. Defendant [Name]’s personnel file;

d. Defendant [Name]’s job performance, including evaluation(s)

and/or performance reviews, commendations or awards, “good-

job” letters and/or memos of comment or criticism;

e. Defendant [Name]’s disciplinary history, including, but not

limited to, warning notices;

f. Defendant [Name]’s salary, raises, bonuses and fringe benefits;

and

g. Defendant [Name]’s demotions, promotions, transfers and/or

changes of position.

6. DEFENDANT [NAME]: Documents concerning Defendant





b. Defendant [Name]’s personnel file;

c. Defendant [Name]’s job performance, including evaluation(s)



d. Defendant [Name]’s disciplinary history, including, but not


10

e. Defendant [Name]’s salary, raises, bonuses and fringe benefits;

and

f. Defendant [Name]’s demotions, promotions, transfers and/or


7. TRAINING: All documents concerning equal employment

opportunity, discrimination and harassment training (whether conducted by video, live or

other means) provided to Defendants [Name] and [Name], including but not limited to:

a. Attendance sheets or other documents evidencing participation

in or attendance for such training;

b. Training certificates; and

c. Training materials presented and/or disseminated to

Defendants [Name] and/or [Name].

8. POLICIES: All documents concerning Defendants’ policies,

employee handbooks, and/or human resource manuals, including, but not limited to,

those pertaining to:

a. Time and attendance;

b. Timekeeping;

c. Defendants’ payment and calculation of wages, including

wages for overtime and spread of hours;

d. Deductions from employee tips and tip collection, allocation

and distribution;

e. Defendants’ policy of only paying Plaintiffs for seven (7) hours

worked per week;

11

f. Complaint procedure(s) for reporting claims of wage and hour

violations;

g. Equal employment opportunities;

h. Discrimination and/or harassment in the workplace;

i. Complaint procedure(s) for reporting claims of discrimination

and/or harassment in the workplace;

j. Workplace attire;

k. Assessment of employee work performance;

l. Employee discipline; and

m. Employee termination.

9. TIP POLICIES: All documents concerning Defendants’ tip-

pooling and tip-out policies, including, but not limited to documents concerning:

a. those categories of workers to whom tips were distributed by

bartenders and servers (i.e., bussers, cooks, security guards,

management, etc.);

b. the amount or percentage of tips distributed to each category of

workers on a daily basis;

c. the amount or percentage by which Plaintiffs’ tips were

reduced for purported fees charged by credit card companies or

any other reason;

d. the tip-out sheets signed by each Plaintiff at the end of each

shift; and

e. all tip-out sheets generated by Defendants.

12

10. PLAINTIFFS’ RECEIPT OF POLICIES: All documents

demonstrating each Plaintiff’s receipt of Defendants’ written policies, employee

handbooks, and/or human resource manuals concerning items 8(a) through (m) and 9(a)

through (e) above.

11. DEFENDANTS’ RECEIPT OF POLICIES: All documents

demonstrating each Defendant’s receipt of Defendants’ written policies, employee


through (e) above.

12. NOTICES TO PLAINTIFFS: All documents demonstrating

Defendants’ oral or written notification(s) to Plaintiffs regarding the federal and state

minimum wage, tip credit and overtime laws.

13. WITNESS STATEMENTS: All documents regarding statements

made by or discussions held with any third-party or any manager or current or former

employee of Defendants (excluding documents protected by a recognized privilege

against disclosure) concerning:

a. Plaintiffs’ terms and conditions of employment;

b. Plaintiffs’ work performance;

c. Plaintiffs’ job duties;

d. Plaintiffs’ New York Labor Law claims;

e. Plaintiffs’ Fair Labor Standards Act claims;

f. Plaintiffs’ complaints to Defendants or any of Defendants’

managers or current or former employees regarding wage and

hour violations committed by Defendants;

13

g. Plaintiffs’ sexual harassment and/or discrimination claims;

h. Plaintiffs’ complaints to Defendants or any of Defendants’

managers or current or former employees regarding sexual

harassment and/or discrimination committed by Defendants; or

i. Defendants’ defenses and affirmative defenses.

14. MANAGEMENT NOTES: All diaries, notes, memoranda, log

books and/or documents regarding statements or notes made by any manager or current

or former employee of Defendants regarding:



c. Plaintiffs’ time and attendance;

d. Payment of wages to Plaintiffs;

e. Tip allocation;



hour violations committed by Defendants; and

g. Plaintiffs’ complaints to Defendants or any of Defendants’


harassment and/or discrimination committed by Defendants.

15. PLAINTIFFS’ PAY RECORDS: Each Plaintiff’s pay records

including, but not limited to, documents concerning:

a. each Plaintiff’s regular rate of pay for each week Plaintiff

worked;

14

b. each Plaintiff’s overtime rate of pay for each week in which

Plaintiff worked overtime for Defendants;

c. total weekly straight-time (all hours worked up to 40 per week)

wages due to each Plaintiff for each week Plaintiff worked;

d. total weekly wages due to each Plaintiff for overtime hours (all

hours worked in excess of 40 per week) Plaintiff worked each

week;

e. any additions to or deductions from each Plaintiff’s wages for

each pay period, including the amounts and reasons thereof;

f. the manner and method by which wages were paid to each

Plaintiff each pay period, including cash, check or any other

means;

g. the date of each payment made to each Plaintiff and the pay

period covered by each payment;

h. each Plaintiff’s cash and credit card tips for each day worked;

and

i. percentage and/or amount of money deducted from each

Plaintiff’s cash and/or credit card tips each day Plaintiff

worked for distribution to other employees and/or

management, to cover purported charges by credit card

companies or for any other reason.

16. PLAINTIFFS’ TIME AND ATTENDANCE: Each Plaintiff’s time

and attendance records for her employment with Defendants, including, but not limited

15

to:

a. time sheets, time cards, sign-in sheets, schedules and

documents regarding the time Plaintiff was scheduled to work

each week;

b. records demonstrating the time of Plaintiff’s arrival to and

departure from work each day;

c. records demonstrating all breaks taken by Plaintiff on a daily

basis for meals or any other reason;

d. documents demonstrating the total number of hours Plaintiff

worked each workweek;

e. Plaintiff’s leave of absences from work, if any, for sickness,

vacation or personal time; and

f. the time of day and day of week on which Plaintiff’s workweek

began.

17. RESTAURANT SALES: All documents concerning the daily

revenue generated by Defendant [Name] at [Company Name] including, but not limited

to:

a. Daily lunch sales;

b. Daily dinner sales;

c. Daily revenue generated from private functions and/or private

parties; and

d. Daily revenue generated from promotional events.

18. PRIVATE PARTIES: All documents concerning private functions,

16

private parties and/or promotional events catered by [Company Name], whether held on

Defendant [Name] premises or off-site, including, but not limited to:

a. Private party, pre-fixe and/or promotional event menu(s);

b. Policies regarding the retention of gratuities by Defendant

[Name] from private functions, private parties and/or

promotional events;

c. Policies regarding the allocation of gratuities to private

function, private party and/or promotional event staff;

d. Policies regarding the wages paid to private function, private

party and/or promotional event staff;

e. The amount of gratuities retained by Defendant [Name] for

each private function, private party and/or promotional event;

f. The amount of gratuities paid to private function, private party

and/or promotional event staff for each event; and

g. The amount of wages paid to private function, private party

and/or promotional event staff for each event.

19. DOL AUDITS: All documents concerning audits or investigations

of Defendants’ payroll practices conducted by the United States Department of Labor and

New York State Department of Labor.

20. WAGE AND HOUR COMPLAINTS: All documents concerning

formal or informal complaints made by Plaintiffs or current or former employees

regarding Defendants’ wage and hour violations. Include, but do not limit your

submission to, complaints filed with the New York State Department of Labor; the

17

United States Department of Labor; any law enforcement authority or court system; any

governmental agency and/or forum; any person employed and/or designated by

Defendants to perform work of a human resources capacity; any person employed and/or

designated by Defendants to investigate and/or receive verbal and/or written complaints

of wage and hour violations; and any person employed by Defendants in a supervisory

and/or managerial capacity.

21. INVESTIGATION OF WAGE AND HOUR COMPLAINTS: All

documents concerning any investigation made by Defendants of formal or informal

complaints (as defined in Request No. 20 above) regarding Defendants’ wage and hour

violations.

22. SEXUAL HARASSMENT/DISCRIMINATION CLAIMS: All

documents concerning formal or informal complaints made by Plaintiffs or current or

former employees regarding Defendants’ sexual harassment and/or gender

discrimination. Include, but do not limit your submission to, complaints filed with the

United States Equal Employment Opportunity Commission; the New York State Division

of Human Rights; the New York City Commission on Human Rights; any law

enforcement authority or court system; any governmental agency and/or forum; any

person employed and/or designated by Defendants to perform work of a human resources

capacity; any person employed and/or designated by Defendants to investigate and/or

receive verbal and/or written complaints of harassment and/or discrimination; and any

person employed by Defendants in a supervisory and/or managerial capacity.

23. INVESTIGATION OF SEXUAL HARASSMENT AND/OR

DISCRIMINATION CLAIMS: All documents concerning any investigation made by

18

Defendants of formal or informal complaints (as defined in Request No. 22 above)

regarding Defendants’ sexual harassment and/or gender discrimination.

24. DEFENDANTS’ DEFENSES/AFFIRMATIVE DEFENSES: All

documents concerning Defendants’ defenses and/or affirmative defenses, including, but

not limited to documents concerning:

a. Each Plaintiff’s alleged violation(s) of Defendants’

timekeeping and recordkeeping policies, including falsification

of time records, as alleged in the Sixth Affirmative Defense of

Defendant [Name]’s Answer to Plaintiffs’ Amended

Complaint;

b. The administrative regulation, order, ruling, approval,

interpretation, administrative practice, and/or enforcement

policy of the United States Department of Labor upon which

Defendants purportedly relied on in good faith in paying wages

to Plaintiffs, as alleged in the Thirteenth Affirmative Defense

of Defendant [Name]’s Answer to Plaintiffs’ Amended

Complaint and Defendant [Name]’s Answer to Plaintiffs’

Amended Complaint and the Twelfth Affirmative Defense of


Complaint;

c. Any releases(s) and/or waiver(s) referred to in the Fifteenth

Affirmative Defense of Defendant [Name]’s Answer to

Plaintiffs’ Amended Complaint and Defendant [Name]’s

19

Answer to Plaintiffs’ Amended Complaint and the Fourteenth


Plaintiffs’ Amended Complaint;

d. Any acts of misconduct in which any Plaintiff engaged prior to

or during her employment with Defendants, as alleged in the

Twenty-Third Affirmative Defense of Defendant [Name]’s

Answer to Plaintiffs’ Amended Complaint and Defendant

[Name]’s Answer to Plaintiffs’ Amended Complaint;

e. The reasonable care exercised by Defendants to prevent and

correct promptly any harassing behavior or other

discriminatory or retaliatory conduct, as alleged in the Twenty-

Fifth Affirmative Defense of Defendant [Name]’s Answer to


Answer to Plaintiffs’ Amended Complaint;

f. Plaintiffs’ unreasonable failure to take advantage of

preventative or corrective opportunities provided by

Defendants or to otherwise avoid harm, as alleged in the

Twenty-Fifth Affirmative Defense of Defendant [Name]’s



g. Plaintiffs’ failure to fulfill or exhaust administrative or

jurisdictional prerequisites to suit, as alleged in the Twenty-

Sixth Affirmative Defense of [Name]’s Answer to Plaintiffs’

20

Amended Complaint and [Name]’s Answer to Plaintiffs’

Amended Complaint; and

h. Defendants’ reasonable steps taken to prevent unlawful

discrimination, harassment and retaliation and immediate and

appropriate remedial measures taken in response to Plaintiffs’

complaints of unlawful discrimination, harassment and

retaliation, as alleged in the Twenty-Ninth Affirmative Defense



Amended Complaint.

25. EXPERTS: For each lay and expert witness whom Defendants

expect to call at trial, all documents reviewed or relied upon to support such expert’s

report or opinion.

26. INSURANCE POLICIES: All documents concerning any

insurance policies that may cover Defendants’ liability for sexual harassment,

discrimination and/or wage and hour violations in the workplace.

27. OTHER DOCUMENTS: All other documents not previously

requested that are relevant to the subject matter of this litigation.

21

Respectfully submitted,

SERRINS FISHER LLP 233 Broadway, Suite 2340 New York, New York 10279 (212) 571-0700

Dated: May 7, 2014 By: ________________________ New York, New York Alan Serrins (AS ****)

ATTORNEYS FOR PLAINTIFFS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK [PLAINTIFFS’ NAMES], individually and on behalf of others similarly situated,

Plaintiffs,

-against- [DEFENDANTS’ NAMES],

Defendants.

Case No.:

PLAINTIFFS’ FIRST REQUEST FOR DOCUMENTS TO DEFENDANTS

To: OPPOSING COUNSEL

PLEASE TAKE NOTICE THAT, pursuant to Rules 26 and 34 of the Federal

Rules of Civil Procedure and Rule 26.3 of the Local Civil Rules of the Southern District

of New York, Plaintiffs _____________ (“Plaintiff Name,”) __________ (“Plaintiff

Name,”) and __________ (“Plaintiff Name”) (collectively “Plaintiffs,”) by and through

their attorneys, Serrins Fisher LLP, hereby demand the items enumerated herein be

produced by Defendants ________________ (“Defendant Name”) ____________

(“Defendant Name”) and _________________ (“Defendant Name”) (collectively

“Defendants”) in accordance with the definitions and instructions stated herein, within

thirty (30) days of service hereof, at Serrins Fisher LLP, 233 Broadway, Suite 2340, New

York, New York 10279, and that Serrins Fisher LLP, as attorneys for Plaintiffs, be

permitted to discover, inspect, test, photocopy, and/or photograph all items produced by

Defendants pursuant to this notice.

2

A. All definitions and rules of construction set forth in both Rule 34 of the

Federal Rules of Civil Procedure and the Local Civil Rules of the Southern District of

New York shall apply to the Requests herein.

DEFINITIONS AND INSTRUCTIONS

B. “Plaintiffs” refers collectively to [PLAINTIFFS’ NAMES], and each of

them, and shall include their agents, attorneys and representatives.

C. “Defendants” refers collectively to [DEFENDANTS’ NAMES], and each

of them, and shall include their officers, directors, employees, partners, corporate parent,

subsidiaries or affiliates.

D. “Person” is defined as any natural person or any legal entity, including,

without limitation, any business or governmental entity or association.

E. “Documents” include any designated documents or electronically stored

information – including writings, drawings, graphs, charts, photographs, sound

recordings, images and other data or data compilations – stored in any medium from

which information can be obtained either directly or, if necessary, after translation by the

responding party into a reasonably usable form. This includes all documents for which

privilege is claimed. If copies, reproductions or facsimiles of a document are not

identical by reason of handwritten notations, initials, identification marks or any other

modification, each such non-identical copy is a separate document within the meaning of

this definition.

F. “Communication” is defined as the transmittal of information (in the form

of facts, ideas, inquiries or otherwise).

G. “Date” means the exact day, month, and year, if ascertainable, or, if not,

3

Defendants’ best approximation thereof.

H. “Concerning” means relating to, referring to, describing, evidencing or

constituting.

I. “And”/”Or” shall be construed either disjunctively or conjunctively as

necessary to bring within the scope of the discovery request all responses that might

otherwise be construed to be outside of its scope.

J. “All”/”Any”/”Each” shall each be construed as encompassing any and all.

K. The use of the singular form of any word includes the plural and vice

versa.

L. The term “identify” means:

(i) when used with respect to a person

(a) the person’s full name; and

, to give, to the extent known:

(b) present or last known address.

(ii) when used with respect to a natural person

(a) the person’s full name;

, to give, to the extent

known:

(b) present or last known address; and

(c) present or last known place of employment.

(iii) when used with respect to a business, legal or governmental entity

or association

(a) the business, legal or governmental entity or association’s

legal name;

, to give, to the extent known:

(b) the location of the business, legal or governmental entity or

4

association’s principal place of operation and main

telephone number; and

(c) the business, legal or governmental entity or association’s

owner(s).

(iv) when used with respect to a document

(a) the type of document;

as defined herein, to give, to

the extent known:

(b) general subject matter;

(c) date of the document; and

(d) author(s), addressee(s) and recipient(s).

(v) when used with reference to a communication

(a) the date when and place where such communication

occurred;

, to state:

(b) the means of communication (e.g., telephone, writings,

correspondence, personal conversations, meetings, etc.);

(c) the identity of the participants and witnesses; and

(d) the substantive information communicated.

M. Once a person has been identified in accordance with this subparagraph,

only the name of that person need be listed in response to subsequent discovery

requesting the identification of that person.

N. When responding to the following Requests please specify which

documents are responsive to each Request and, where appropriate, to each sub-part

thereof.

5

O. Should Defendants assert a claim of privilege or work product for any

communications or documents about which information or inspection is requested, and a

complete answer is not provided on the basis of such assertion, identify the nature of the

privilege being claimed and provide the following information without causing disclosure

of the allegedly privileged information:

(i) a brief description of the subject matter of the document or

communication;

(ii) date of the document or communication;

(iii) recipient(s) of the document or communication; and

(iv) the grounds on which the claim of privilege or work product rests.

P. In the context of a Request or a response thereto, whenever necessary to

bring within the scope of the Request information that would otherwise be excluded

therefrom, the singular shall mean plural, and the masculine gender shall mean the

feminine, and vice versa.

Q. If you object to any portion of a Request, provide information as to those

portions of the Request to which you do not object. For those portions of any Request to

which you object, state in detail the reason for such objection.

R. If you cannot answer any of the following Requests in full after exercising

due diligence, so state and answer the Request to the fullest extent possible, specifying

your inability to answer the remainder and stating whatever information or knowledge

you have concerning the unanswered portions.

S. Each Request not only calls for information known to Defendants, but also

calls for all information available to Defendants through reasonable inquiry, including

6

inquiry of Defendants’ respective representatives and agents.

T. The relevant time period, unless otherwise stated, shall be from the time

[Company Name] opened to present, and shall include all documents and information

which relate in whole or in part to such period, or to events or circumstances during such

period.

U. These Requests are of a continuing nature. If after service of Defendants’

response, Defendants obtain additional information responsive thereto, they shall

promptly supplement or amend their response in accordance with Rule 26(e) of the

Federal Rules of Civil Procedure.

7

DOCUMENT REQUESTS

1. PLAINTIFFS’ PERSONNEL DOCUMENTS: Each Plaintiff’s

personnel file and all other documents regarding each Plaintiff’s employment with

Defendants, including, but not limited to, documents concerning:

a. Each Plaintiff’s application for employment;

b. Defendants’ job interview of each Plaintiff, if any, before she

was hired;

c. Defendants’ offer of a job to each Plaintiff;

d. Each Plaintiff’s acceptance of employment with Defendant

[Name];

e. The terms and conditions of each Plaintiff’s employment;

f. Each Plaintiff’s job performance, including evaluation(s)

and/or performance reviews; commendations or awards;

“good-job” letters; and memos of comment or criticism;

g. Each Plaintiff’s disciplinary history, including, but not limited

to, warning notices, if any;

h. Each Plaintiff’s salaries, raises, bonuses and fringe benefits;

i. Complaints regarding each Plaintiff or her work performance

and any warning notices issued to each Plaintiff regarding such

complaints;

j. Each Plaintiff’s demotions, promotions, transfers and/or

changes of position, if any;

k. Each Plaintiff’s IRS Form(s) W-4;

8

l. Each Plaintiff’s IRS Form(s) W-2 for each year worked since

2008;

m. Any alleged contracts or agreements entered into between each

Plaintiff and Defendants; and

n. Each Plaintiff’s cessation of employment with Defendants.

2. REPLACEMENT EMPLOYEES

3.

: All documents concerning the

interview, selection, hiring and terms and conditions of employment of the individual

who replaced each Plaintiff with Defendant [Name].

ORGANIZATIONAL CHARTS

4.

: All organizational charts or

documents demonstrating the reporting structure for each Plaintiff (i.e., to whom Plaintiff

reported) during her employment with Defendants.

JOB DESCRIPTIONS

a. Defendant _________;

: Job descriptions for:

b. Defendant _________;

c. ______________; and

d. Each Plaintiff.

5. DEFENDANT [NAME]




: Documents concerning Defendant


b. Documents concerning claims or complaints of discrimination

and/or harassment made against Defendant [Name] by

9

Defendants’ current or former employees from January 2008 to

present;

c. Defendant [Name]’s personnel file;

d. Defendant [Name]’s job performance, including evaluation(s)



e. Defendant [Name]’s disciplinary history, including, but not


f. Defendant [Name]’s salary, raises, bonuses and fringe benefits;

and

g. Defendant [Name]’s demotions, promotions, transfers and/or


6. DEFENDANT [NAME]




: Documents concerning Defendant


b. Defendant [Name]’s personnel file;

c. Defendant [Name]’s job performance, including evaluation(s)



d. Defendant [Name]’s disciplinary history, including, but not


10

e. Defendant [Name]’s salary, raises, bonuses and fringe benefits;

and

f. Defendant [Name]’s demotions, promotions, transfers and/or


7. TRAINING

a. Attendance sheets or other documents evidencing participation

in or attendance for such training;

: All documents concerning equal employment

opportunity, discrimination and harassment training (whether conducted by video, live or

other means) provided to Defendants [Name] and [Name], including but not limited to:

b. Training certificates; and

c. Training materials presented and/or disseminated to

Defendants [Name] and/or [Name].

8. POLICIES

a. Time and attendance;

: All documents concerning Defendants’ policies,

employee handbooks, and/or human resource manuals, including, but not limited to,

those pertaining to:

b. Timekeeping;

c. Defendants’ payment and calculation of wages, including

wages for overtime and spread of hours;

d. Deductions from employee tips and tip collection, allocation

and distribution;

e. Defendants’ policy of only paying Plaintiffs for seven (7) hours

worked per week;

11

f. Complaint procedure(s) for reporting claims of wage and hour

violations;

g. Equal employment opportunities;

h. Discrimination and/or harassment in the workplace;

i. Complaint procedure(s) for reporting claims of discrimination

and/or harassment in the workplace;

j. Workplace attire;

k. Assessment of employee work performance;

l. Employee discipline; and

m. Employee termination.

9. TIP POLICIES

a. those categories of workers to whom tips were distributed by

bartenders and servers (i.e., bussers, cooks, security guards,

management, etc.);

: All documents concerning Defendants’ tip-

pooling and tip-out policies, including, but not limited to documents concerning:

b. the amount or percentage of tips distributed to each category of

workers on a daily basis;

c. the amount or percentage by which Plaintiffs’ tips were

reduced for purported fees charged by credit card companies or

any other reason;

d. the tip-out sheets signed by each Plaintiff at the end of each

shift; and

e. all tip-out sheets generated by Defendants.

12

10. PLAINTIFFS’ RECEIPT OF POLICIES

11.

: All documents

demonstrating each Plaintiff’s receipt of Defendants’ written policies, employee


through (e) above.

DEFENDANTS’ RECEIPT OF POLICIES

12.

: All documents

demonstrating each Defendant’s receipt of Defendants’ written policies, employee


through (e) above.

NOTICES TO PLAINTIFFS

13. WITNESS STATEMENTS: All documents regarding statements

made by or discussions held with any third-party or any manager or current or former

employee of Defendants (excluding documents protected by a recognized privilege

against disclosure) concerning:

: All documents demonstrating

Defendants’ oral or written notification(s) to Plaintiffs regarding the federal and state

minimum wage, tip credit and overtime laws.



c. Plaintiffs’ job duties;

d. Plaintiffs’ New York Labor Law claims;

e. Plaintiffs’ Fair Labor Standards Act claims;



hour violations committed by Defendants;

13

g. Plaintiffs’ sexual harassment and/or discrimination claims;

h. Plaintiffs’ complaints to Defendants or any of Defendants’


harassment and/or discrimination committed by Defendants; or

i. Defendants’ defenses and affirmative defenses.

14. MANAGEMENT NOTES


: All diaries, notes, memoranda, log

books and/or documents regarding statements or notes made by any manager or current

or former employee of Defendants regarding:


c. Plaintiffs’ time and attendance;

d. Payment of wages to Plaintiffs;

e. Tip allocation;



hour violations committed by Defendants; and

g. Plaintiffs’ complaints to Defendants or any of Defendants’


harassment and/or discrimination committed by Defendants.

15. PLAINTIFFS’ PAY RECORDS

a. each Plaintiff’s regular rate of pay for each week Plaintiff

worked;

: Each Plaintiff’s pay records

including, but not limited to, documents concerning:

14

b. each Plaintiff’s overtime rate of pay for each week in which

Plaintiff worked overtime for Defendants;

c. total weekly straight-time (all hours worked up to 40 per week)

wages due to each Plaintiff for each week Plaintiff worked;

d. total weekly wages due to each Plaintiff for overtime hours (all

hours worked in excess of 40 per week) Plaintiff worked each

week;

e. any additions to or deductions from each Plaintiff’s wages for

each pay period, including the amounts and reasons thereof;

f. the manner and method by which wages were paid to each

Plaintiff each pay period, including cash, check or any other

means;

g. the date of each payment made to each Plaintiff and the pay

period covered by each payment;

h. each Plaintiff’s cash and credit card tips for each day worked;

and

i. percentage and/or amount of money deducted from each

Plaintiff’s cash and/or credit card tips each day Plaintiff

worked for distribution to other employees and/or

management, to cover purported charges by credit card

companies or for any other reason.

16. PLAINTIFFS’ TIME AND ATTENDANCE: Each Plaintiff’s time

and attendance records for her employment with Defendants, including, but not limited

15

to:

a. time sheets, time cards, sign-in sheets, schedules and

documents regarding the time Plaintiff was scheduled to work

each week;

b. records demonstrating the time of Plaintiff’s arrival to and

departure from work each day;

c. records demonstrating all breaks taken by Plaintiff on a daily

basis for meals or any other reason;

d. documents demonstrating the total number of hours Plaintiff

worked each workweek;

e. Plaintiff’s leave of absences from work, if any, for sickness,

vacation or personal time; and

f. the time of day and day of week on which Plaintiff’s workweek

began.

17. RESTAURANT SALES

a. Daily lunch sales;

: All documents concerning the daily

revenue generated by Defendant [Name] at [Company Name] including, but not limited

to:

b. Daily dinner sales;

c. Daily revenue generated from private functions and/or private

parties; and

d. Daily revenue generated from promotional events.

18. PRIVATE PARTIES: All documents concerning private functions,

16

private parties and/or promotional events catered by [Company Name], whether held on

Defendant [Name] premises or off-site, including, but not limited to:

a. Private party, pre-fixe and/or promotional event menu(s);

b. Policies regarding the retention of gratuities by Defendant

[Name] from private functions, private parties and/or

promotional events;

c. Policies regarding the allocation of gratuities to private

function, private party and/or promotional event staff;

d. Policies regarding the wages paid to private function, private

party and/or promotional event staff;

e. The amount of gratuities retained by Defendant [Name] for

each private function, private party and/or promotional event;

f. The amount of gratuities paid to private function, private party

and/or promotional event staff for each event; and

g. The amount of wages paid to private function, private party

and/or promotional event staff for each event.

19. DOL AUDITS

20.

: All documents concerning audits or investigations

of Defendants’ payroll practices conducted by the United States Department of Labor and

New York State Department of Labor.

WAGE AND HOUR COMPLAINTS: All documents concerning

formal or informal complaints made by Plaintiffs or current or former employees

regarding Defendants’ wage and hour violations. Include, but do not limit your

submission to, complaints filed with the New York State Department of Labor; the

17

United States Department of Labor; any law enforcement authority or court system; any

governmental agency and/or forum; any person employed and/or designated by

Defendants to perform work of a human resources capacity; any person employed and/or

designated by Defendants to investigate and/or receive verbal and/or written complaints

of wage and hour violations; and any person employed by Defendants in a supervisory

and/or managerial capacity.

21. INVESTIGATION OF WAGE AND HOUR COMPLAINTS: All

documents concerning any investigation

22.

made by Defendants of formal or informal

complaints (as defined in Request No. 20 above) regarding Defendants’ wage and hour

violations.

SEXUAL HARASSMENT/DISCRIMINATION CLAIMS

23.

: All

documents concerning formal or informal complaints made by Plaintiffs or current or

former employees regarding Defendants’ sexual harassment and/or gender

discrimination. Include, but do not limit your submission to, complaints filed with the

United States Equal Employment Opportunity Commission; the New York State Division

of Human Rights; the New York City Commission on Human Rights; any law

enforcement authority or court system; any governmental agency and/or forum; any

person employed and/or designated by Defendants to perform work of a human resources

capacity; any person employed and/or designated by Defendants to investigate and/or

receive verbal and/or written complaints of harassment and/or discrimination; and any

person employed by Defendants in a supervisory and/or managerial capacity.

INVESTIGATION OF SEXUAL HARASSMENT AND/OR

DISCRIMINATION CLAIMS: All documents concerning any investigation made by

18

Defendants of formal or informal complaints (as defined in Request No. 22 above)

regarding Defendants’ sexual harassment and/or gender discrimination.

24. DEFENDANTS’ DEFENSES/AFFIRMATIVE DEFENSES

a. Each Plaintiff’s alleged violation(s) of Defendants’

timekeeping and recordkeeping policies, including falsification

of time records, as alleged in the Sixth Affirmative Defense of


Complaint;

: All

documents concerning Defendants’ defenses and/or affirmative defenses, including, but

not limited to documents concerning:

b. The administrative regulation, order, ruling, approval,

interpretation, administrative practice, and/or enforcement

policy of the United States Department of Labor upon which

Defendants purportedly relied on in good faith in paying wages

to Plaintiffs, as alleged in the Thirteenth Affirmative Defense



Amended Complaint and the Twelfth Affirmative Defense of


Complaint;

c. Any releases(s) and/or waiver(s) referred to in the Fifteenth



19

Answer to Plaintiffs’ Amended Complaint and the Fourteenth


Plaintiffs’ Amended Complaint;

d. Any acts of misconduct in which any Plaintiff engaged prior to

or during her employment with Defendants, as alleged in the

Twenty-Third Affirmative Defense of Defendant [Name]’s



e. The reasonable care exercised by Defendants to prevent and

correct promptly any harassing behavior or other

discriminatory or retaliatory conduct, as alleged in the Twenty-

Fifth Affirmative Defense of Defendant [Name]’s Answer to


Answer to Plaintiffs’ Amended Complaint;

f. Plaintiffs’ unreasonable failure to take advantage of

preventative or corrective opportunities provided by

Defendants or to otherwise avoid harm, as alleged in the

Twenty-Fifth Affirmative Defense of Defendant [Name]’s



g. Plaintiffs’ failure to fulfill or exhaust administrative or

jurisdictional prerequisites to suit, as alleged in the Twenty-

Sixth Affirmative Defense of [Name]’s Answer to Plaintiffs’

20

Amended Complaint and [Name]’s Answer to Plaintiffs’

Amended Complaint; and

h. Defendants’ reasonable steps taken to prevent unlawful

discrimination, harassment and retaliation and immediate and

appropriate remedial measures taken in response to Plaintiffs’

complaints of unlawful discrimination, harassment and

retaliation, as alleged in the Twenty-Ninth Affirmative Defense



Amended Complaint.

25. EXPERTS

26.

: For each lay and expert witness whom Defendants

expect to call at trial, all documents reviewed or relied upon to support such expert’s

report or opinion.

INSURANCE POLICIES

27.

: All documents concerning any

insurance policies that may cover Defendants’ liability for sexual harassment,

discrimination and/or wage and hour violations in the workplace.

OTHER DOCUMENTS

: All other documents not previously

requested that are relevant to the subject matter of this litigation.

21

Respectfully submitted,

SERRINS FISHER LLP 233 Broadway, Suite 2340 New York, New York 10279 (212) 571-0700

Dated: May 7, 2014 By: ________________________ New York, New York Alan Serrins (AS ****)

ATTORNEYS FOR PLAINTIFFS

900200.00001/7375244v.1

DISCOVERY ISSUES FOR

NEW YORK EMPLOYERS IN

EMPLOYMENT DISCRIMINATION

DISPUTES

(May 12, 2014)

Stephen E. Tisman, Esq.Valerie D. Ringel, Esq.Blank Rome LLPThe Chrysler Building405 Lexington AvenueNew York, NY 10174-0208

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I. Introduction

Counsel for an employer sued for employment discrimination knows that the client likely faces a costly and disruptive stretch of pretrial discovery before the case is resolved on motion for summary judgment or by settlement or at trial. In addition to the usual tasks faced by counsel for the defendant in litigation in state or federal court in New York – identifying witnesses, tying down the facts, gathering and preserving all of the relevant documents and materials, electronic and paper, developing defenses, priming for cross-examination – discrimination cases pose a host of issues and considerations which differ in substance or degree from those typically dealt with in other commercial litigations.

First, discovery proceeds not only with the usual judicial predisposition toward liberal disclosure, but “courts typically apply more “liberal civil discovery rules” in employment discrimination cases, giving plaintiffs “broad access to employers’ records in an effort to document their claims.” Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 557, 562 (S.D.N.Y. 2013) quoting Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989), superseded by statute on other grounds, Civil Rights Act of 1991, Pub.L. No. 102–166, 105 Stat. 1074.

Second, because the nature of proof in discrimination cases usually involves the treatment or conduct of individuals, the plaintiff, co-workers and managers, the evidence typically raises issues of confidentiality and privacy. This is particularly so in a disability discrimination or harassment lawsuit.

Third, in those cases where damages are sought for emotional distress, there are often litigation issues over efforts to obtain medical records, and mental (psychological or psychiatric) examinations, and discovery from individuals providing mental health treatment or counseling to the plaintiff.

Fourth, whether or not the plaintiff mitigated damages is almost always in play, frequently resulting in arguments over production of tax returns and third-party discovery from the plaintiff’s subsequent employers.

Finally, discrimination cases embrace the concept of “after acquired evidence” to defeat claims for reinstatement or to limit or abate claims for money damages, leading to disputes over the need (and foundation) for discovery regarding conduct before the incident leading to the lawsuit, and even before the plaintiff ever was hired.

This outline, while covering the general areas that an employer’s counsel may encounter in the discovery phase of the case, places special focus on the topics that come up in discrimination cases more often than other types of case. Where possible, we have gathered New York state and Second Circuit cases.

II. Preservation of Evidence

A. Before a lawsuit is even filed, there is a duty to preserve evidence once litigation is “reasonably anticipated.”

B. Make sure client takes steps to preserve all relevant documents, physical evidence and electronically stored information (“ESI”), including sending out a litigation hold to the relevant players at the client.

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C. Better to be safe than sorry. If in doubt whether a claim or litigation may be filed, take steps to preserve evidence. In-house counsel and Human Resources executives should be alert to this and, if appropriate, take such steps even before outside counsel is consulted.

D. Review with client what steps are being taken and who is included on the distribution list. This may include identifying where relevant information may be located, identifying the relevant individuals involved in the matter, the types of information, documents and things that may be relevant or responsive to a discovery request, and the relevant time period during which such documents might have been created. Periodically reissue litigation hold.

E. Need to ensure that routine document destruction policies and any auto-delete features of email systems are suspended for relevant areas and players. Again, if in doubt, preserve it.

F. Also need to preserve and segregate readily accessible back-up data, and even inaccessible back-up data (e.g. back-up tapes) for “key players.”

G. You should also send a “preservation letter” to plaintiff’s counsel reminding him or her about plaintiff’s duty to preserve evidence.

H. Note that reliance on client-in-house counsel is not sufficient. See Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) (holding that it is not sufficient to notify all employees of a litigation hold and expect that the party will then retain and produce all the relevant information; counsel must take affirmative steps to monitor compliance).

I. Consider impounding or imaging of hard drives on computers used by plaintiff, for later review.

III. Anticipating ESI Issues

A. Once litigation is anticipated you should:

1. Become familiar with the operation and administration of the client’s systems, including your client’s retention policies

2. Identify sources of ESI

3. Identify potential custodians

4. Oversee litigation hold efforts

5. Communicate with client and/or its IT department to define the IT Department’s role in the discovery process

B. Potential Sources of ESI include not only active computer files such as word processing documents, databases, and spreadsheets, but also e-mail, software, digital pictures, text and instant messages.

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1. Electronic data may be stored on workplace computer hard drives, personal computer hard drives, diskettes, compact discs, cloud storage, USB drives and back-up drives as well as on portable media such as Blackberries, tablets, and cell phones. Furthermore, copies of electronic documents may reside on backup servers, backup tapes, third-party service servers, or buffer memory on fax machines, printers, and digital copiers. In addition, electronic information may be “hidden” as metadata and other information automatically gathered on a computer, “deleted” documents that are still recoverable, and on web-site log files.

2. Some categories of ESI:

a. Active Data Files;

b. E-mail, Instant Messages, Text Messages;

c. Backup Data on tapes and other storage media;

d. Legacy Data;

e. Replicant/Archival Data;

f. Metadata, Embedded Data, and Audit Trails;

g. Residual (“Deleted”) Data; and

h. Social Media Data.

C. Don’t overlook where a relevant individual’s information and documents may be stored, including his or her desk or locally maintained files, office computer, network folders, home or laptop computers, handheld devices, internet based or cloud storage, informal back-up disks or drives, or secretary/assistant’s electronic file and emails.

IV. Pre-Discovery Research

A. FOIA/FOIL requests

1. If the plaintiff has filed a discrimination claim with the Equal Employment Opportunity Commission (EEOC), the New York State Division of Human Rights (NYSDHR) or the New York City Commission on Human Rights (NYCCHR), you should send out a Freedom of Information Act request to the EEOC or Freedom of Information Law request to the NYSDHR or the NYCCHR. While some records may be withheld as being exempt from such disclosure, for the cost of copying you may find something interesting.

B. Public Sources

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1. Search the Internet and publically available Social Media for information about the plaintiff.

2. Also search court records in the county or district where the plaintiff resides for prior actions brought by the plaintiff.

a. Lawsuits against prior employers.

b. Personal bankruptcy filings.

V. Initial Disclosures (Federal Court, Fed. R. Civ. P. Rule 26) 1

A. Provide the name, address and phone number of each individual that you may use to support your defense (or counterclaim), unless solely being used for impeachment. Fed. R. Civ. P. 26(a)(1)(A)(i).

B. You must also include a copy of or a description by category and location of all documents and ESI. Fed. R. Civ. P. 26(a)(1)(A)(ii).

C. If a counterclaim has been asserted by the employer, provide a computation of each category of damages. Fed. R. Civ. P. 26 (a)(i)(A)(iii).

D. If relevant, provide a copy of any insurance policy or agreement that may be used to satisfy, indemnify or reimburse any potential judgment. Fed. R. Civ. P. 26(a)(1)(A)(iii)(iv).

E. Discovery Protocols for Employment Cases Alleging Adverse Actions

1. In November 2011, the U.S. Judicial Conference’s Advisory Committee on Civil Rules (Advisory Committee) adopted the Initial Discovery Protocols for Employment Cases Alleging Adverse Actions (Protocols), which individual judges across the country are pilot testing. As described in the Protocols, “[t]hey are intended to supersede the parties’ obligations to make initial disclosures pursuant to Fed. R. Civ. Proc. 26(a)(1).”

2. The resulting Protocols create a new category of information exchange, replacing initial disclosures with initial discovery specific to employment cases alleging adverse action. This discovery is provided automatically by both sides within 30 days of the defendant’s responsive pleading or motion.

3. The Protocols apply to all employment cases that challenge one or more actions alleged to be adverse, except class actions2 and cases in which the allegations involve only the following:

1 Note that the Judicial Conference Advisory Committees on Bankruptcy and Civil Rules have proposed amendments to Rule 26(b)(1) and 26(c) to promote proportionality in discovery. If approved, they will take effect December 1, 2015.

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a. Discrimination in hiring;

b. Harassment/hostile work environment;

c. Violations of wage and hour laws under the Fair Labor Standards Act (FLSA);

d. Failure to provide reasonable accommodations under the Americans with Disabilities Act (ADA);

e. Violations of the Family Medical Leave Act (FMLA);

f. Violations of the Employee Retirement Income Security Act (ERISA).

4. Check the individual rules for the Judge assigned to your case to see if heor she is participating.

5. A copy of the Protocols is attached as Appendix A.

VI. Methods of Discovery

A. General Considerations

1. Check forum rules with respect to scope and number of requests. (Fed. R. Civ. P. 33 limits interrogatories to 25, including discrete subparts; S.D.N.Y. Local Rule 33.3 bars contention interrogatories until conclusion of discovery; Fed. R. Civ. P. 30(d) generally limits deposition to 1 day of 7 hours).

2. Also check Judge’s individual rules. Both State and Federal Judges may have rules addressing discovery issues.

3. Consider an appropriate time frame for the discovery you seek.

4. Be careful what you ask for. Ask your adversary for too much and the plaintiff may turn around and serve the same over-broad request on your client. Remember your client, as the employer, has a great deal more information than a typical plaintiff. If at all possible avoid asking for information you are not willing to provide. Again, the plaintiff may turn around and ask your client to produce it.

5. When responding to document requests, make it clear what you are producing and what you are not. Insist that the plaintiff do so as well.

2 Note that employment class actions in the S.D.N.Y. may be subject to the Pilot Project Regarding Case Management Techniques for Complex Civil Cases in the Southern District of New York. A copy of the Standing Order for this project may be found at http://www.nysd.uscourts.gov/rules/Complex_Civil_Rules_Pilot.pdf.

www.nysd.uscourts.gov/rules/Complex_Civil_Rules_Pilot.pdf

http://www.nysd.uscourts.gov/rules/Complex_Civil_Rules_Pilot.pdf

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6. Note that if the plaintiff’s claim is subject to arbitration, your discovery options may be limited. While most arbitration bodies permit document discovery, depositions may not be permitted or may be limited. Check the rules for of the governing arbitration body as soon as the arbitration has been commenced to ascertain your options and plan accordingly. Also, discovery of third parties in arbitration may be limited. For example, in a FINRA arbitration,3 only arbitrators – not attorneys for the parties - may issue a subpoena to non-parties. If a party believes that the case requires information from third parties and wants the arbitrators to issue a subpoena, the party must make a written motion for the arbitrators to do so. The arbitrators will then determine whether the subpoena should be issued and how costs will be assessed.

B. Document Requests to Plaintiff – what to ask for

1. Communications concerning the factual allegations or claims at issue in the lawsuit;

2. Diaries, journals and calendar entries maintained by the plaintiff concerning the factual allegations or claims at issue in the lawsuit, don’t overlook outlook or similar calendar entries;

3. Claims, lawsuits, administrative charges and complaints by the plaintiff in the present matter, and in any other matters that rely upon any of the same factual allegations or claims as those in the lawsuit at bar;

4. Documents relating to qualifications for the position held, if relevant, such as prior employment and education and licenses;

5. The plaintiff’s resume used to obtain the employment at issue;

6. Documents concerning the formation and/or termination of the employment relationship at issue;

7. Damages-related documents - Mitigation:

a. Job search efforts;

b. Current resume and prior versions;

c. Offer(s) of employment and details as to offered income and benefits.

d. Tax returns [discussed below]

8. Documentary evidence related to emotional distress, including medical records, prescriptions, pharmacy receipts, and social media postings [discussed below];

3 Since 2007 FINRA has excluded employment discrimination claims from mandatory arbitration.

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9. Compensation history;

10. Documents concerning claims for unemployment benefits;

11. Documents concerning the termination of any subsequent employment;

12. Workers compensation records, if any; and

13. Any other document upon which the plaintiff relies to support his/her claims.

C. Interrogatories

1. Remember limitations in S.D.N.Y.; also effective June 2, 2014, the New York State Court Commercial Part will similarly limit the number and scope of interrogatories.

2. Even outside S.D.N.Y., may want to limit nature of information sought (at least initially) to identity of witnesses, documents and calculation of damages.

3. Even where contention or substantive interrogatories are permitted, remember that a lawyer (in most instances) will be drafting the response. It may be more advantageous to ask plaintiff at deposition.

D. Depositions

1. In addition to plaintiff, consider who else may need to be deposed, including witnesses not within your control (e.g. former employees, the plaintiff’s spouse or partner) or who may not be available for trial.

2. Consider whether you want to videotape the depositions. In addition to recording plaintiff’s deposition, will any of the witnesses be unavailable for trial making videotaping of such witnesses more desirable. Also consider the demeanor of the potential witness. Will it be more effective at trial to present testimony with video than reading from a transcript?

3. Check local and Judge’s rules on depositions. In addition to restrictions on duration, there may be rules addressing conduct of counsel during the deposition. (See, e.g., S.D.N.Y./E.D.N.Y. Local Rule 30.4; 22 NYCRR, Part 221 – Uniform Rules for the Conduct of Depositions).

4. Priority of depositions; none in Federal Court; in State Court defendant has presumptive priority.

5. Identify your goals:

a. Pure discovery;

b. Lock in testimony for trial;

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c. Potential summary judgment motion;

d. Settlement discussions.

6. Place of employer’s deposition - “The deposition of a corporation by its agents and officers should ordinarily be taken at its principal place of business. This customary treatment is subject to modification, however, when justice requires.” Wright & Miller, 8A Fed. Prac. & Proc. Civ. § 2112 (3d ed.).

E. Requests for Admissions

1. After discovery of plaintiff has been had, consider whether admissions would help narrow the issues for trial.

2. Invaluable for authenticating documents.

F. Physical or mental examination, if appropriate [see Emotional Distress and Discovery discussed below].

G. Expert Discovery

1. Based on facts of case, consider what type of trial expert may be needed. For example, if plaintiff claims something more than garden variety emotional distress, may want an expert on mental health issues. But in a single plaintiff discrimination case, the cost of an expert may outweigh the benefit. However, if plaintiff has retained an expert, you may want to retain one to refute plaintiff’s expert.

2. Remember, in Federal Court, depositions of experts are permitted. In New York State Court, they generally are not permitted, but check the Judge’s individual rules. Some Commercial Part Judges may allow depositions of experts.

H. Discovery that may be sought by Plaintiff

1. Other complaints of discrimination made against the employer. You may be able to limit the scope:

a. Narrow the timeframe, possibly to plaintiff’s tenure. Sallis v. University of Minnesota, 408 F.3d 470 (8th Cir. 2005) (upholding narrowing of request for discovery of all departments to complaints filed no more than one year prior to actions at issue and to the department where plaintiff was employed); see Fleming v. City of New York, 233 F. Supp.2d 613 (S.D.N.Y. 2002) (limiting discovery to three years, the time frame plaintiff worked for defendant).

b. The department and/or decision-makers at issue. Cronas v. Willis Group Holdings Ltd., 2008 WL 4548861 (S.D.N.Y. Oct. 8, 2008)

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(denying request for nationwide discovery, finding production properly limited to subsidiary which employed plaintiffs, where adverse decisions were made locally); Semple v. Federal Express Corp., 566 F.3d 788 (8th Cir. 2009) (same, limiting to local District where plaintiff was employed).

c. The type(s) of alleged conduct at issue. Walker v. Centocor Ortho Biotech, Inc., 2014 WL 631042 (3d Cir. Feb. 19, 2014) (African-American employee not entitled to discovery of complaints against her manager where documents concerned non race-related complaints); Gillum v. ICF Emergency Management Services, L.L.C., 2009 WL 2136269 (M.D. La. July 16, 2009) (limiting discovery of other complaint to age discrimination and disparate treatment, the specific type of discrimination alleged).

2. Personnel and/or disciplinary files of other employees and/or supervisors:

a. Privacy concerns can prohibit or limit the production of personnel files, especially when non-party employees are involved. SeeGavenda v. Orleans County, 182 F.R.D. 17, 29 (W.D.N.Y. 1997) (declining to compel production of personnel files of all employees where plaintiff could not establish that there would be information in the files relating to plaintiff’s claims); but see Barella v. Village of Freeport, 296 F.R.D. 102, 106 (E.D.N.Y. 2013) (permitting discovery of personnel files of 24 employees that plaintiff made an initial showing were similarly situated to him, “in part to help identify the universe of proper comparators”).

b. Consider what limitations may be permitted, including limitations on access to the production. In Barella, the court permitted the defendants to redact personal information of the employees and sealed the records and directed the plaintiff not to show them to any other person or entity. 296 F.R.D. at 106.

3. Investigation Reports - You should consider whether to assert the “self-evaluation” or “self-critical analysis” privilege to any reports summarizing any in-house investigations of plaintiff’s claims. While the Second Circuit has not specifically addressed the issue, and the District Courts within the Circuit are split on the issue (see, e.g., Zikianda v. County of Albany, 2013 WL 936446, at *3 (N.D.N.Y Mar. 8, 2013) (collecting cases)), you may get a Judge that is willing to recognize the privilege. Note however that if you wind up in State court, the courts do not appear to recognize the privilege at all. See, e.g., Uniformed Fire Officers Assn., Local 854 v. City of New York, 100 A.D.3d 546, 547, 955 N.Y.S.2d 5 (1st Dep’t 2012); Lamitie v. Emerson Elec. Co. -- White Rodgers Div., 142 A.D.2d 293-298-99, 535 N.Y.S.2d 650 (3d Dep’t 1988).

4. Statistical Data – Statistical evidence may be relevant and admissible in an individual employment discrimination case. Stanojev v. Ebasco Servs.,

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Inc., 643 F.2d 914, 921 (2d Cir. 1981). “It is well-settled that an individual disparate treatment plaintiff may use statistical evidence regarding an employer’s general practices at the pretext stage to help rebut the employer’s purported nondiscriminatory explanation.” Hollander v. American Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990). “Evidence relating to company-wide practices may reveal patterns of discrimination against a group of employees, increasing the likelihood that an employer’s offered explanation for an employment decision regarding a particular individual masks a discriminatory motive.” Id.

VII. Third Party Discovery

A. Consider subpoenas to relevant third parties – former employers, customers, witnesses to events, former colleagues, persons identified by Plaintiff as having relevant knowledge, etc.

B. Consider getting documents and taking depositions of medical providers, psychologists, therapists, etc. [See discussion of Emotional Distress and Discovery of Medical Records following]

VIII. Particular Discovery Issues

A. Emotional Distress and Discovery of Medical Records – Federal Court

1. “[T]he Supreme Court [has] made clear that the federal courts are required to recognize that confidential communications between a licensed psychotherapist—including a licensed social worker engaged in psychotherapy—and his or her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence[.]” In re Sims, 534 F.3d 117, 130 (2d Cir. 2008) citing Jaffee v. Redmond, 518 U.S. 1, 15 (1996).4

2. Note that this privilege does not extend to “medical providers who are not psychotherapists, even if the treatment sought from the medical provider was a referral to a mental health professional or a prescription for medication to treat depression or anxiety.” E.E.O.C. v. Nichols Gas & Oil, Inc., 256 F.R.D. 114, 120 (W.D.N.Y. 2009); U.S. v. Wilson, 2012 WL 3890951, at *4 (E.D.N.Y. Sep. 7, 2012).

3. “Like other testimonial privileges, the patient may of course waive the protection.” Jaffe, 518 U.S. at 15 n. 14. If the plaintiff puts his or her emotional or mental condition at issue, then he or she may be found tohave waived the privilege. Wilson, 2012 WL 3890951 at *5.

4 Where the claims arise under Federal law, the plaintiff cannot claim protection under the New York Physician-patient privilege. Nichols Gas & Oil, Inc. 256 F.R.D. at 122; NY CPLR § 4504(a). Even if plaintiff asserts a pendent state law claim, where the evidence sought is relevant to both federal and state law claims, federal law will govern the privilege issue. von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 141 (2d Cir.), cert. denied, 481 U.S 1015 (1987); Zikianda v. County of Albany, 2013 WL 936446, at * 3 (N.D.N.Y. Mar. 8, 2013).

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4. Psychotherapy records may not be discoverable however where a plaintiff asserts only “garden variety” emotional distress damages. In re Sims, 534 F.3d at 141-42; Koch v. Cox, 489 F.3d 384 (D.C. Cir. 2007); Tavares v. Lawrence & Mem. Hosp., 2012 WL 4321961, at *4 (D. Conn. Sep. 20, 2012); Nicholas Gas & Oil, Inc., 256 F.R.D. at 121; see Perry v. City of New Haven, 2012 WL 3887061, at *2 (D. Conn. Sep. 6, 2012) (psychotherapist-patient privilege not waived by garden variety emotional distress but finding names, dates of treatment and length of treatment was not privileged).

5. Where a plaintiff has asserted and sought recovery for severe emotional distress, a plaintiff has placed his or her mental condition at issue and it is not merely a garden variety claim. Green v. St. Vincent’s Medical Center, 252 F.R.D. 125, 129 (D. Conn. 2008) (applying Sims to find that the plaintiff’s emotional condition was at issue in case where she pursued claims for negligent and intentional infliction of emotional distress and sought recovery for “severe” emotional distress); In re Consolidated RNC Cases, 2009 WL 130178, at *7 (S.D.N.Y. Jan. 8, 2009) (causes of action alleging “severe emotional distress, emotional injuries, psychological harm, mental anguish, mental injury, embarrassment, humiliation, shock, fright, and apprehension” are not “garden variety claims”).

6. Medical records are not only needed to define and evaluate the injury claimed by the plaintiff, but to seek alternative explanations for plaintiff’s symptoms or their severity. “Ordinarily, defendants are allowed to present evidence of alternative explanations for a plaintiff’s distress, or its severity, in defense of such a claim.” Green, 252 F.R.D. at 128; Nichols Oil & Gas, Inc., 256 F.R.D. at 120.

7. Time-frame. While defense experts routinely request all medical records seeking alternative explanations for plaintiff’s symptoms, the courts may limit the time period for such records. See, e.g. Nichols Oil & Gas, Inc., 256 F.R.D. at 123 (limiting request to one year prior to and one year after employment); E.E.O.C. v. Grief Bros., 218 F.R.D. 59, 64 (W.D.N.Y. 2003)(allowing discovery of nine years of medical records due to the “lengthy and serious nature” of plaintiff’s allegations and depression and related psychological problems).

8. The fact that plaintiff does not plan to use an expert is not determinative of whether discovery will be permitted. In Bennet v. Emmerson Tool Co., the plaintiff alleged and requested emotional distress damages in connection with a fraud claim, but stated he did not intend to use an expert during trial to prove the claim. The court allowed defendant the discovery and opined that “the fact that plaintiff is not planning to present any expert testimony in support of his emotional distress claim does not make this information any less relevant.” Moreover, case law does not support the contention that this information is only discoverable only if he were planning to present expert testimony regarding his mental and emotional condition.

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See Bennet v. Emmerson Tool Co., 2001 WL 1155301, at *1-2 (D. Kansas May 21, 2001).

B. Emotional Distress and Discovery of Medical Records – State Court

1. State courts do not appear to address or even discuss any distinction between “garden-variety” and severe emotional distress, but instead focus on whether the plaintiff placed his or her emotional or mental condition in controversy. See, e.g., Diamond v. Ross Orthopedic Group, P.C., 41 A.D.3d 768, 839 N.Y.S.2d 211, 212 (2d Dep’t 2007) (finding that the “plaintiff affirmatively placed her entire medical condition in controversy through the broad allegations of physical injury and mental anguish” and ordering the plaintiff to provide medical authorizations to the defendant); Retamozzo v. Quinones, 95 A.D.3d 652, 653, 954 N.Y.S.2d 22 (1st Dep’t 2012) (plaintiff required to provide mental health records where he placed mental an emotional state at issue); Syron v. Paolelli, 238 A.D.2d 710, 710-11, 656 N.Y.S.2d 419, 420 (3d Dep’t 1997) (plaintiff’s psychological and psychiatric records were discoverable where plaintiff claimed she suffered permanently from mental anxiety and emotional distress); Brown v. Telerep, Inc., 263 A.D.2d 378, 379, 693 N.Y.S.2d 34, 35 (1st Dep’t 1999) (plaintiff not required to produce psychiatric records where she withdrew claims for intentional infliction of emotional distress and defamation and removed affirmative interjection of her emotional or mental condition from case).

2. At least one court has recognized that under NY law, the psychologist-patient privilege is afforded greater confidentiality than the physician-patient privilege. 5 LeVien v. LaCorte, 168 Misc.2d 952, 640 N.Y.S.2d 728 (Sup. Ct. Suffolk Co. 1996) (recognizing that psychologist-patient privilege affords greater confidentiality than physician patient privilege, but found waiver where party put mental condition at issue and party acknowledged pre-incident visits to psychologist and claimed different reasons for seeking treatment).

3. Medical Authorizations. The New York Office of Court Administration has issued a form of HIPAA Authorization for use in state courts. A copy of this form is provided in Appendix B. Note that this form may not be used to obtain psychotherapy notes. An authorization for psychotherapy notes must be set forth in a separate authorization from that used for other health records. 45 C.F.R. § 164.508 (b)(3)(ii).

C. Federal Rules of Civil Procedure - Rule 35 Exams

5

CPLR §4507 places the psychologist-patient privilege on even footing with the attorney-client privilege. NY

CPLR § 4507 (“The confidential relations and communications between a psychologist … and his client are placed on the same basis as those provided by law between attorney and client”). Accordingly, “[t]o determine whether there is a waiver of the psychologist-client privilege, therefore, the Court must look to the standard to be applied to a waiver of the attorney-client privilege.” LeVien, 168 Misc. 2d at 957.

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1. Rule 35 provides that “the court where the action is pending may order a party whose mental or physical condition—including blood group—is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.” Fed. R. Civ. P. Rule 35(a)(1).

2. “The order: (A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and (B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.” Fed. R. Civ. P. Rule 35 (a)(2).

3. A party places his or her mental or physical condition “in controversy” by claiming injury as a result of the opposing party’s conduct. Schlagenhaufv. Holder, 379 U.S. 104, 119-21 (1964).

4. A garden variety claim for emotional distress may not be enough. “Rule 35 mental examinations may be obtained where plaintiff’s allegations of emotional distress amount to more than a claim for garden variety emotional distress damages.” Grief Bros., 218 F.R.D. at 61 (internalpunctuation omitted).

5. When addressing whether the condition is in controversy, typical factors relied upon by some courts include: “1) a cause of action for intentional or negligent infliction of emotional distress; 2) an allegation of a specific mental or psychiatric injury or disorder; 3) a claim of unusually severe emotional distress; 4) plaintiff’s offer of expert testimony to support a claim of emotional distress; and/or 5) plaintiff’s concession that his or her mental condition is ‘in controversy’ within the meaning of Rule 35(a).” Jarrar v. Harris, 2008 WL 2946000, *3 (E.D.N.Y. July 25, 2008); Guzman v. News Corp., 2012 WL 2148166, at *2 (S.D.N.Y. June 13, 2012) (Rule 35 exam ordered where plaintiff alleged inter alia she “has suffered and continues to suffer, severe mental anguish and emotional distress”); Stoner v. New York City Ballet Co., 2002 WL 31875404, at *5 (S.D.N.Y. Dec. 24, 2002) (plaintiff put emotional and psychiatric status into issue by seeking damages for serious emotional distress and proffering expert witness)).

6. Some courts have suggested that the showing requires an “unusually severe emotional distress.” See, e.g., Bourne v. City of Middleton, 2012 WL 6600297, at *2. (D. Conn. Dec. 18, 2012) (but suggesting “ongoing” severe mental injury may be sufficient) citing Gattegno v. Pricewaterhouse Coopers, LLP, 204 F.R.D. 228, 231 (D. Conn. 2001). Other courts have expressly rejected such a heightened showing. Grief Bros., 218 F.R.D. at 62 (severe and serious emotional distress and depression sufficient.)

7. “[I]f a plaintiff asserts that a defendant’s actions caused a mental injury or ongoing mental illness, that plaintiff puts her mental condition clearly in controversy, and provides defendant with the good cause necessary for an

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order under Rule 35(a) allowing a mental examination.” Guzman, 2012 WL 2148166, at *1.

8. Generally, a plaintiff’s attorney will not be permitted to attend the Rule 35 examination. Grief Bros., 218 F.R.D. at 62 (“[f]ailure to show special circumstances for the need to have an attorney or court reporter present will defeat a request for such relief”); Favale v. Roman Catholic Diocese of Bridgeport, 235 F.R.D. 553, 556 (D. Conn. 2006) (denying request to have paralegal attend exam); see also Stoner v. New York City Ballet Co., 2002 WL 31875404 at *5 (plaintiff’s expert would not be permitted to attend). Nor will plaintiff generally be permitted to record the exam. Grief Bros. Co., 218 F.R.D. at 62; Favale, 235 F.R.D. at 557 (similar to analysis of whether to permit attorney to attend).

9. Note that such an examination is much easier to take under New York law. NY CPLR § 3121 requires that a party whose physical or mental condition is “in controversy” must submit to an examination at the request of another party. Under this section, the examination can be scheduled on not less than twenty days notice. NY CPLR § 3121(a). In addition, unlike in Federal Court a party in a state court proceeding is entitled to have his or her attorney present as the examination, so long as the attorney does not duly interfere with the examination. See, e.g., Ramsey v. New York University Hosp. Center, 14 A.D.3d 349, 789 N.Y.S.2d 104, 105 (1st Dep’t 2005) (allowing plaintiff in discrimination action to have attorney present during psychiatric evaluation); Jakubowski v. Lengen, 86 A.D.2d 398, 401-02, 450 N.Y.S.2d 612, 614 (4th Dep’t 1982); see Gray v. Victory Mem. Hosp., 142 Misc.2d 302, 304, 536 N.Y.S.2d 679, 681 (Sup. Ct. Kings Co. 1989) (permitting plaintiff to have his own psychiatrist present at exam).

D. Tax Returns

1. Federal “[c]ourts have been reluctant to require disclosure of tax returns because of both the private nature of the sensitive information contained therein and the public interest in encouraging the filing by taxpayers of complete and accurate returns.” Rahman v. Smith & Wollensky Restaurant Group, Inc., 2007 WL 1521117, at * 7 (S.D.N.Y. May 24, 2007) (internal punctuation omitted) [citing Smith v. Bader, 83 F.R.D. 437, 438 (S.D.N.Y. 1979)] (allowing discovery of named plaintiff’s tax returns in discrimination class action); Michelman v. Ricoh Americas Corp., 2013 WL 664893, at *2 (E.D.N.Y. Feb. 22, 2013) (requiring plaintiff in Age discrimination action to produce redacted tax returns showing income and sources of income).

2. “Disclosure is appropriate ‘only if, on balance, the federal policy of liberal discovery outweighs the policy of maintaining the confidentiality of tax returns.’ ” Id., 2007 WL 1521117 at * 7 citing Hazeldine v. Beverage Media, Ltd., 1997 WL 362229, at *4 (S.D.N.Y. June 27, 1997).

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3. “Accordingly, a court will order disclosure when (1) the returns are relevant to the subject matter of the action and (2) there is a compelling need for the returns because the information contained therein is not otherwise readily available.” Rahman, 2007 WL 1521117 at * 7 ((internal punctuation omitted) quoting S.E.C. v. Cymaticolor Corp., 106 F.R.D. 545, 547 (S.D.N.Y. 1985)); accord Biggs v. P&B Capital Group, 2012 WL 5499628, at *3 (W.D.N.Y. Nov. 12, 2012) (ordering plaintiff in Title VII action to produce tax returns where the information was relevant and not otherwise available).

4. “While the party seeking disclosure of the tax returns bears the burden of establishing relevance, the party resisting disclosure should bear the burden of establishing alternative sources for the information.” Rahman, 2007 WL 1521117 at * 7 quoting United States v. Bonanno Organized Crime Family of La Cosa Nostra, 119 F.R.D. 625, 627 (E.D.N.Y.1988).

5. New York law is similar although the burden on showing unavailability is on the party seeking disclosure under state law. “Because of their confidential and private nature, disclosure of tax returns is disfavored. The party seeking disclosure must make a strong showing of necessity and demonstrate that the information contained in the returns is unavailable from other sources.” Williams v. New York City Hous. Auth., 22 A.D.3d 315, 316, 802 N.Y.S.2d 5556 (1st Dep’t 2005), quoting Gordon v. Grossman, 183 A.D.2d 669, 670, 584 N.Y.S.2d 54 (1st Dep’t 1992); Ahroner v. Israel Discount Bank of New York, 14 Misc.3d 1205(A), 831 N.Y.S.2d 357 (Sup. Ct. N.Y. Co. 2005) (upholding prior order requiring disclosure of tax records showing earned income, but amending order to allow redaction of interest income).

E. Depositions of High Level Executives

1. High level executives are not immune from discovery, see, e.g., General Star Indem. Co. v. Platinum Indem. Ltd., 210 F.R.D. 80, 83 (S.D.N.Y. 2002), “even where a party asserts that the officer lacks knowledge of the issues present in the litigation.” Nature’s Plus Nordica A/S v. Natural Organics, Inc., 2012 WL 1514871, at *1 (E.D.N.Y. Apr. 30, 2012) citingConsol. Rail Corp. v. Primary Indus. Corp.,1993 WL 364471, at *1 (S.D.N.Y. Sept. 10, 1993) (“Highly-placed executives are not immune from discovery.... [A] claim that the witness lacks knowledge is subject to testing by the examining party.”).

2. “However, permitting unfettered discovery of corporate executives would threaten disruption of their business and could serve as a potent tool for harassment in litigation. Therefore, when it comes to deposing a high-ranking officer, courts have concluded that [u]nless it can be demonstrated that a corporate official has some unique knowledge of the issues in the case, it may be appropriate to preclude a[ ] deposition of a highly-placed executive while allowing other witnesses with the same knowledge to be questioned.” Nature’s Plus Nordica A/S, 2012 WL 1514871 at *2 [internal

16900200.00001/7375244v.1

punctuation and citation omitted] quoting Retail Brand Alliance, Inc. v. Factory Mut. Ins. Co., 2008 WL 622810, at *5 (S.D.N.Y. Mar. 7, 2008) (quoting Consol. Rail Corp., 1993 WL 364471, at *1); see also Harris v. Computer Assocs. Int’l, Inc., 204 F.R.D. 44, 46 (E.D.N.Y. 2001) (“Depositions of high level corporate executives may be duplicative, cumulative and burdensome where the person sought to be deposed has no personal knowledge of the events in dispute.”).

3. “The case law discussing the “unique knowledge” requirement is inconsistent concerning which side bears the burden of proof.” Fermin v. Rite Aid of New York, Inc., 2012 WL 364035, at *2 n.1 (S.D.N.Y. Feb 3, 2012) comparing, e.g., Burns v. Bank of America, 2007 WL 1589437, at *3 (S.D.N.Y. Jun. 4, 2007) (“Unless it can be demonstrated that a corporate official has ‘some unique knowledge’ of the issues in the case, ‘it may be appropriate to preclude a deposition of a[] highly-placed executive while allowing other witnesses with the same knowledge to be questioned.’”) with Louis Vuitton Malletier v. Doonev & Bourke, Inc.,2006 WL 3476735, at *12 (S.D.N.Y. Nov. 30, 2006) (“courts have agreed that if a party seeks to depose a very senior official of an adversary entity, the adversary may obtain an order vacating the deposition notice if it can demonstrate that the proposed deponent has no personal knowledge of the relevant facts and no unique knowledge of those facts.”).

4. While some courts have denied depositions of high-level executives (Nature’s Plus Nordica A/S, 2012 WL 1514871; Harris, 204 F.R.D. 44), others have merely limited the discovery sought (Retail Brand Alliance, Inc., 2008 WL 622810, at * 6 (limiting discovery to 25 written questions, including subparts, in the first instance); Fermin, 2012 WL 364035 at *2 (limiting discovery to 10 written questions to each of the four witnesses at issue in the first instance).) And of course, others have on the facts in the case allowed the deposition to proceed. See, e.g., General Star Indemnity Co., 210 F.R.D. 80.

5. The law in New York State Courts does not appear as well developed on this issue, but where the executive lacks relevant knowledge of matters in dispute and information was available from other sources, the court may prohibit the taking of the testimony. See, e.g., Nauka v. Plenum Pub. Corp., 266 A.D.2d 157, 698 N.Y.S.2d 32 (1st Dep’t 1999) (vacating notices of deposition of president of company and three directors where information sought was not in dispute and was readily obtainable from other sources); Arendt v. General Elec. Co., 270 A.D.2d 622, 704 N.Y.S.2d 346 (3d Dep’t 2000) (denying motion to depose CEO where party already took deposition of lower level managers and failed to show CEO possessed necessary and relevant information); cf. Rella v. State, 117 A.D.2d 591, 592, 498 N.Y.S.2d 63, 64 (2d Dep’t 1986) (trial subpoena to executive director of psychiatric center properly quashed where she had no personal knowledge of incident, and derived her knowledge from investigator who already testified at trial).

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F. After Acquired Evidence

1. “The after-acquired evidence rule applies where an employer attempts to introduce evidence that was not known by the employer at the time of the employee’s termination as a post-hoc justification for the employer’s decision to discharge the employee.” Hickey v. Myers, 2013 WL 2418252, at *2 (N.D.N.Y. June 3, 2013).

2. Under the after-acquired evidence doctrine, “[o]nce an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if the information might have gone undiscovered absent the suit.” McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 362, (1995). “Where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” Id. at 362–63.

3. “[A]fter-acquired evidence is generally inadmissible to show liability in employment actions, [but] such evidence may be admitted for the limited purpose of mitigating damages.” Hickey, 2013 WL 2418252 at *3.

4. Note that the desire to look for after acquired evidence does not enable an employer to engage in a fishing expedition to look for such evidence. See, e.g., Lev v. South Nassau Communities Hosp., 2011 WL 3652282, at * 1 (E.D.N.Y. Aug. 18, 2011) (granting motion to quash subpoenas served on former employers of plaintiff where employer had no basis to suspect any prior wrongdoing, finding desire to ascertain whether or not it could assert the doctrine was insufficient); Chamberlain v. Farmington Sav. Bank, 2007 WL 2786421, at * 3 (D. Conn. Sep. 25, 2007) (holding “defendant cannot use the after-acquired evidence defense to conduct extensive discovery into the plaintiff’s prior employment records on the basis of pure speculation”); Rivera v. NIBCO, Inc., 364 F.3d 1057, 1071-72 (9th Cir. 2004) (affirming denial of request by employer to seek discovery of plaintiff’s immigration status to look for evidence of wrong doing), cert. denied, 544 U.S. 905 (2005).

5. But see Premer v. Corestaff Servs., L.P., 232 F.R.D. 692 (M.D. Fla. 2005) (limited production from former employers appropriate to support after-acquired evidence defense in view of discrepancy between plaintiff’s interrogatory responses and employment application); Graham v. Casey’s General Stores, 206 F.R.D. 251, 255–56 (S.D. Ind. 2002) (certain prior employment records discoverable in view of concession made by plaintiff as to prior criminal conviction in order to determine whether plaintiff was truthful about events surrounding the termination of her previousemployment).

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G. Social Media. Don’t overlook discovery of social media sources. While some states have enacted legislation prohibiting or limiting an employer’s or prospective employer’s access to such accounts in the hiring process or as a condition of employment, the information may well be relevant to the issues in the litigation. While the courts will not allow a fishing expedition into such sources, the courts have allowed discovery on a showing of a factual predicate or basis that discoverable materials may be located on the social media site. See, e.g., Pereira v. City of New York, 40 Misc.3d 1210(A), 975 N.Y.S.2d 711 (Sup. Ct. Queens Co. June 19, 2013) (personal injury action) (on showing of factual predicate, court required plaintiff to provide all photographs, emails, status reports and videos posted on plaintiff’s media sites to court for in camera inspection to determine relevance); Giacchetto v. Patchogue-Medford Unionfree School Dist., 293 F.R.D. 112, 116-17 (E.D.N.Y. 2013) (disability discrimination action) (permitting discovery of any social networking postings that relate or refer to events alleged in amended complaint); Reid v. Ingerman Smith LLP, 2012 WL 6720752, at *2-3 (E.D.N.Y. Dec. 27, 2012) (sexual harassment action) (on showing of factual predicate, permitting limited discovery action of social media communications and photographs that reflect or relate to plaintiff’s emotional or mental state). But see, e.g., Pecile v. Titan Capital Group, LLC, 113 A.D.3d 526, 979 N.Y.S.2d 303, 304-05 (1st Dep’t 2014) (sexual harassment action) (denying defendant’s demand for access to plaintiff’s social media sites; no showing of basis, only vague and generalized assertions that it might relate to plaintiff’s claims for emotional distress); Tapp v. New York State Urban Development Corp., 102 A.D.3d 620, 620, 958 N.Y.S.2d 392, 393 (1st Dep’t 2013) (personal injury action) (denying access to Facebook account where no showing of relevance made).

IX. Confidentiality Stipulations and Orders

A. Consider what information your client may need to produce which may be confidential

B. Categories of such information include:

1. Trade secret, financial and propriety information, including compensation relating to employees other than Plaintiff, customer information, business plans, etc.

2. Medical Information.

C. Consider whether it is appropriate to have two-tier protection – a “standard” level of confidentiality protection applicable to most materials and a more stringent “attorneys’ eyes only” level. A two tier construct is most typically appropriate where the plaintiff works for a competitor of the defendant and the attorneys’ eyes only provision is intended to protect information disclosed by the defendant that could provide a competitive advantage to the plaintiff or his employer.

D. A sample Stipulation and Order for the Production and Exchange of Confidential Information, drafted by the New York City Bar Association Committee on State

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Courts of Superior Jurisdiction, is attached as Appendix C. A sample S.D.N.Y. Protective Order, required by Judge Rakoff, is included in Appendix D as well.

E. In marking client documents confidential, be careful to include only those documents which truly qualify as confidential. If you need to file the documents marked confidential as an exhibit to a motion you may need to explain to the Court why they qualify. Also, needlessly marking documents adds to the logistical and administrative burdens when you seek to use such documents on motion or at trial.

F. Also note that certain information needs to be redacted before filing in Federal Court such as social security numbers, taxpayer identification numbers, dates of birth, names of minor children, and financial account numbers. Fed. R. Civ. P. 5.2. Under State Court Rules, documents concerning similar information and other information must be filed as “Secure Information.” 22 NYCRR § 202.5-b(d)(3)(iii).

Faculty Biographies

BERKE-WEISS & PECHMAN LLP

ATTORNEYS AT LAW 488 MADISON AVENUE

NEW YORK, NEW YORK 10022 (212) 583-9500 · FAX: (212) 308-8582

WWW.BWP-LAW.COM Louis Pechman represents both employers and employees before federal and state courts and government agencies in all areas of workplace law, including employment discrimination, union-management relations, employment contracts, ERISA, non-competition agreements, independent contractor issues, and wage/hour disputes. As a practitioner for over twenty years in the labor and employment field, Mr. Pechman offers both individual employees and employers practical guidance on improving the employment relationship and, where appropriate, terminating that relationship. Prior to forming his partnership ten years ago with Laurie Berke-Weiss, Mr. Pechman has worked as a labor and employment attorney at three Manhattan law firms, as in-house labor counsel with the New York Daily News, and as a Field Examiner with the National Labor Relations Board. Admitted to the New York and New Jersey Bars, he is a graduate of the Cornell University School of Industrial and Labor Relations and the Fordham University School of Law. A frequent contributor to the New York Law Journal and other business and legal publications, Mr. Pechman often gives presentations on employment law topics, including the Americans with Disabilities Act, sexual harassment, and the development of human resource policies and procedures. He has lectured at the Fordham University School of Law, New York University, the Extension Division of the Cornell University School of Industrial and Labor Relations, and the American Bar Association. From 1994 through 1998, he was Chair of the New York County Lawyers' Association Committee on Labor Relations and Employment Law. Since 1996, Mr. Pechman has developed and moderated NYCLA's annual program on "How to Handle an Employment Discrimination Case."

Alan Serrins Esq.

Partner

Location:

New York, New York

Phone:

646-741-3490 866-654-0343

Fax:

212-233-3801

Email:

Email Me

Widely recognized as a pioneer in Employment, Civil Rights and Anti-Discrimination law, Alan Serrins brings more than 35 years' experience to his field. He began working in employment discrimination law when the practice was first emerging. From the outset, Serrins developed a passion for the field and a deep commitment to advancing the rights of employees in the workplace.

Serrins' employment law career launched when he joined the New York City Human Rights Commission in 1977. Two years later, he was appointed General Counsel by the New York City Commission on Human Rights; then 28 years of age, he was the youngest General Counsel in the Commission's history. As General Counsel, Serrins was Chief Law Enforcement Officer of the agency and supervised a staff of 16 attorneys and 22 investigators. Under Serrins' guidance, the Commission prosecuted thousands of discrimination complaints in the areas of employment, housing and public accommodation. Serrins was also in the forefront of the newly emerging field of sexual harassment, having successfully prosecuted the Commission's first such case in 1979. In 1982, Serrins moved to Belfast, Northern Ireland as a

http://www.serrinsfisher.com/E-mail.shtml?guid=O2wb4VxsDLOM7sOiIaUjLNdnxIBT8bwEYGwh6gG3h3cBcbmVw/FqesACnc6b4Mc88stg7ISHGzyBpFJ9C96wpVKy5h2VRWplcD8UylfF0asGbwXh1r+8a91GQ0GMv5w38SzqL6lh6HwaVO5TKgMlvA1gVeI3wBAcEtsnq06+eLA=

consultant to the newly formed Fair Employment Agency of Northern Ireland, which modeled its law on the New York City Human Rights Law.

Upon his return to New York in 1984, Serrins moved into private practice founding Dienst & Serrins LLP, which would become a highly recognized, full-service litigation boutique over the next 16 years. Beginning in 2000, Serrins went on to co-found a successor firm, Queller Fisher Dienst Serrins Washor & Kool LLP, and subsequently founded Serrins & Associates, LLC. Serrins Fisher LLP was established in 2012.

Serrins has litigated dozens of cases from inception to verdict. His caseload has included claims under Title VII, the Age Discrimination in Employment Act, The Americans with Disability Act, the United States and New York State Constitution, state and local discrimination laws, civil service laws, State Education law, and Federal and State False Claims Act (Qui Tam) and common law claims such as breach of contract.

Serrins regularly appears on behalf of clients before the Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Commission on Human Rights and all federal, state, and appellate courts throughout New York. He has also represented numerous clients at arbitrations and mediations before various administrative bodies.

In addition to his litigation practice, Serrins provides legal advice to clients with regard to drafting and negotiating employment agreements, severance agreements and executive compensation.

Notable Successes

Some of Serrins' recent notable achievements include:

• Resolving a racial discrimination suit arising from a high-level executive's termination of employment from a multi-media conglomerate. Through use of alternative-dispute methods, Serrins obtained a seven-figure settlement prior to the scheduling of trial in the Supreme Court of New York, Bronx County.

• Resolving a Sarbanes Oxley Whistleblower case filed in the United States District Court for the Eastern District of New York, stemming from loss of employment by a financial controller who sought to rectify corporate fraud within the ranks of an international technology company.

• Successfully litigating before an administrative agency for a rape survivor victimized by her supervisor while performing cleaning services in New York City offices. The case became widely publicized, garnering attention for thousands of workers who endured sexual harassment and other hostile conditions in the commercial cleaning industry.

Other Work

In addition to his primary work representing victims of discrimination, Serrins serves as General Counsel for SilverSEAL Corporation, which was founded in 1988 to provide security-related services to

corporations, government and private individuals. The Corporation, headquartered in New York City's South Street Seaport, employs over 300 security personnel and operates locations worldwide. As General Counsel of SEAL, Serrins provides advice and counsel to management on all business matters, including contract negotiation, investigating employee complaints and training management/employees on applicable federal, state, and local laws.

Areas of Practice

• Employment Law

• Civil Rights and Anti-Discrimination law

Bar Admissions

• New York, 1975

• U.S. District Court Southern District of New York, 1977

• U.S. District Court Eastern District of New York, 1977

• U.S. Court of Appeals 2nd Circuit, 1985

• U.S. Supreme Court, 1990

Education

• New York Law School, New York, New York

o J.D. - 1974

• Hofstra University

o B.A. - 1971

Classes/Seminars

• Instructor, Institute for Mediation and Conflict Resolution, 1980 - 1981

• Guest Lecturer, Queens University, Belfast, 1982 - 1984

• Adjunct Professor, Conflict Management Program, Seton Hall Law School, 2011 - Present

Honors and Awards

• AV Rated by Martindale-Hubbell

• Lieutenants Benevolent Association of the New York City Police Department (“NYPD”), Award in Recognition for Best Legal Services, 1994

• Emerald Society of the NYPD – Service Award, 1994

Professional Associations and Memberships

• New York City Commission on Human Rights, General Counsel, 1979 - 1982

• National Employment Lawyers Association, Member

• New York State Human Rights Advisory Counsel to the State Division of Human Rights, Member, 1985

• Board of the Goldwater Memorial Hospital, Member

• Board of Working Women’s Institute, Member

• Council on Municipal Hospital Community Boards, Chairman, 1977 - 1979

Past Employment Positions

• Queller Fisher Dienst Serrins Washor & Kool LLP, Co-Found

Pro Bono Activities

• New York City Human Rights Commission, 1977

• Consultant to the Fair Employment Agency for Northern Ireland, Belfast, N.I., 1982 - 1984

PROFESSIONALS STAFF ALUMNI DIVERSITY

SERVICESCommercial and Corporate LitigationEmployment LitigationEmployment, Benefits & Labor

ADMISSIONSNew York Supreme Court of the United States U.S. District Court - District of Connecticut U.S. District Court - Eastern District of New York U.S. District Court - Northern District of California U.S. District Court - Southern District of New York United States Court of Appeals for the Second Circuit United States Court of Appeals for the Third Circuit

MEMBERSHIPSAmerican Bar Association New York City Bar Association New York State Bar Association

EDUCATIONColumbia University School of Law, JD University of Pennsylvania, BA

New York, NY v. +1.212.885.5581 f. +1.917.332.3007

Stephen E. Tisman concentrates his practice on employment, benefits and labor law, complex corporate and employment litigation (trials and appeals), and corporate business matters and counseling.

Mr. Tisman’s U.S. and international clients have included a multibillion dollar insurance company, an internationally-affiliated newspaper, non-profit organizations, a radio station, national consulting and actuarial firms, a reinsurance brokerage, a manufacturer of pates and specialty foods, apparel companies, a large travel agency, an "employee leasing" company, law firms, accounting firms, and a professional sports agent, among many others. He also has represented senior executives in many industries, including financial services, insurance, and the pharmaceutical industries, in litigated and contractual matters.

He has litigated in virtually all of the courts of New York and in state and federal courts throughout the U.S. He has practiced before state and federal administrative agencies and has brought and defended arbitrations before the American Arbitration Association, the New York Stock Exchange, the Financial Industry Regulatory Authority (“FINRA”), and its predecessor, the National Association of Securities Dealers (“NASD”).

At the Columbia University School of Law, Mr. Tisman was a James Kent Scholar and International Fellow, an Editor of the Columbia Journal of Transnational Law, and a recipient of a Hague Academy fellowship.

Mr. Tisman has been recognized in the New York edition of Super Lawyers from 2007-2013.

He has received the highest possible rating from Martindale-Hubbell.

COMMUNITY SERVICE & AFFILIATIONS

Mr. Tisman previously served as a member of the Council on Judicial Administration and on the Committees on Federal Courts and State Legislation of the New York City Bar Association.

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