A primer on discovery in employment litigation
The beauty and the challenge of practicing employment law is that every case is unique. There is no cookie-cutter set of discovery that will work in every lawsuit. However, while every case is different and discovery must be tailored to the particular facts and legal theories of each individual action, there are many common themes that arise during the course of discovery in employment cases. This article examines some categories of discovery that frequently should be explored by plaintiff’s counsel in employment cases, with legal authority supporting such discovery.
Insurance coverage information
If there is insurance coverage that may cover the claims raised in the lawsuit, it is important to obtain coverage information. The California Legislature intended to make the existence and contents of insurance policies discoverable, as evidenced by the plain wording of section 2017.210 of the Code of Civil Procedure: “A party may obtain discovery of the existence and contents of any agreement under which any insurance carrier may be liable to satisfy in whole or in part a judgment that may be entered in the action. This discovery may include the identity of the carrier and the nature and limits of the coverage…”
Often, defense counsel will provide the amount of coverage in response to form interrogatories, or perhaps provide just the declarations page. That is not sufficient. The plaintiff is entitled to the entire insurance policy, so that the plaintiff can understand the full nature and limits of the coverage available to satisfy a judgment. (See Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 739.)
Plaintiff’s personnel file
It is possible to obtain the plaintiff’s personnel files before a lawsuit is even filed, so it is not necessary to wait until after the lawsuit has been filed and formal discovery has commenced to obtain these records. It is a good idea to obtain the employee’s personnel records early on in the course of representation. There are three California Labor Code sections that allow this to be accomplished.
Labor Code section 1198.5 allows every current and former employee or his or her representative “to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.” (Lab. Code, § 1198.5, subd. (a).) An employer must generally provide access to or a copy of the personnel file within 30 days after receiving a written request. (Lab. Code, § 1198.5, subd. (b)(1).) However, the employer’s duty to provide a copy of or access to the personnel file is halted once the employee files a lawsuit against the employer. (Lab. Code, § 1198.5, subd. (n).)
Thus, the best course is to request the personnel file before commencing the lawsuit. Otherwise, it must be requested during the normal course of discovery in the litigation.
Labor Code section 226 allows an employee or former employee to inspect or obtain copies of records pertaining to his or her employment. (Lab. Code, § 226, subd. (b).) Under this section, the employer must provide the employee or former employee with access to or copies of the employment records within 21 days. (Lab. Code, § 226, subd. (c).) Failure to do so can result in the employer having to pay a $750 penalty. (Lab. Code, § 226, subd. (f).)
The third statute that allows an employee or former employee to obtain records outside the discovery context is Labor Code section 432, which entitles an employee to a copy of any documents he or she signed relating to “the obtaining or holding of employment.” (Lab. Code, § 432.)
Once discovery in the lawsuit has commenced, plaintiff’s counsel should request any other personnel records not yet produced. Often, an employer maintains a personnel file in its human-resources department, but other files may also exist elsewhere that are not technically what the employer refers to as the personnel file. This might include a manager’s own file relating to its employees or local files maintained outside the corporate office. Any discovery request should be tailored broadly enough to include files relating to the employee which may not be what the employer technically refers to as the “personnel file.”
Complaints of discrimination, harassment, and retaliation
In an employment action alleging discrimination, harassment and/or retaliation, it is nearly always a good idea to conduct discovery into other allegations of discrimination, harassment, or retaliation brought against the employer. This is an area where the employer is likely to resist complying.
Because the objectives of California’s Fair Employment and Housing Act and Title VII of the Federal Civil Rights Act are similar, California courts have routinely relied upon federal law to interpret the FEHA. (Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 662.) Thus, counsel may rely on both federal and state cases that discuss the admissibility or discoverability of other claims of discrimination.
Evidence of other acts of discrimination and harassment by an employer is admissible to establish discriminatory animus. Courts considering discrimination cases have long recognized that direct evidence of an employer’s discriminatory intent is extremely difficult to obtain. (See, e.g., Clark v. Claremont University Center, supra, 6 Cal.App.4th at pp. 662, 670; Mixon v. Fair Employment and Housing Comm’n (1987) 192 Cal.App.3d 1306, 1317.) Thus, it has been uniformly held that discriminatory intent may be proven by circumstantial evidence. (Los Angeles Department of Parks and Recreation v. Civil Service Comm’n (1992) 8 Cal.App.4th 273, 283.) Circumstantial evidence includes evidence of the employer’s history and work practices with respect to other individuals in the same protected classes as the plaintiff.
The United States Supreme Court has recognized that, because “there will seldom be ‘eyewitness’ testimony as to the employer’s mental processes,” evidence of the employer’s discriminatory attitude in general is relevant and admissible to prove discrimination. (United States Postal Serv. Bd. of Governors v. Aikens (1983) 460 U.S. 711, 713-714, n. 2, 716.)
Thus, in Estes v. Dick Smith Ford, a race and age discrimination suit brought under Title VII, the Court of Appeals held that it was reversible error for the district court to exclude evidence such as the makeup of defendants’ workforce, and prior acts of discrimination by the defendants. The court reasoned: “The effects of blanket evidentiary exclusions can be especially damaging in employment discrimination cases, in which plaintiffs must face the difficult task of persuading the fact finder to disbelieve an employer’s account of its own motives …. Circumstantial proof of discrimination typically includes unflattering testimony about the employer’s history and work practices – evidence which in other kinds of cases may well unfairly prejudice the jury against the defendant. In discrimination cases, however, such background evidence may be critical for the jury’s assessment of whether a given employer was more likely than not to have acted from an unlawful motive.” (Estes v. Dick Smith Ford, Inc. (8th Cir. 1988) 856 F.2d 1097, 1103.)
In Heyne v. Caruso, other claims of sexual harassment were found admissible to prove discriminatory intent in the plaintiff’s discharge, and that the proffered reasons for the termination were pretextual. (Heyne v. Caruso (9th Cir. 1995) 69 F.3d 1475, 1480; see also, EEOC v. Farmer Bros. Co. (9th Cir. 1994) 31 F.3d 891, 897-98 [attitude of hostility towards women relevant to motive of gender discrimination in discharging female employee]; Phillip v. ANR Freight Systems, Inc. (8th Cir. 1991) 945 F.2d 1054, 1056 [in age discrimination case under the Age Discrimination in Employment Act, it was error to exclude evidence of other age discrimination suits against the defendants]; Spulak v. K Mart Corp. (10th Cir. 1990) 894 F.2d 1150, 1156 [“As a general rule, the testimony of other employees about their treatment by the defendant [employer] is relevant to the issue of the employer’s discriminatory intent.”].)
California state cases hold likewise. For example, in Pantoja v. Anton, the court held that evidence that the employer sexually harassed other employees outside the former employee plaintiff’s presence and at times other than when she was employed was relevant and admissible to show that the employer harbored a discriminatory intent or bias based on gender, to rebut the employer’s evidence, and to impeach the employer’s credibility. (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 113-114.)
In addition, evidence of unlawful treatment of other employees may be relevant and admissible to establish that the employer failed to take all reasonable steps to prevent discrimination from occurring. The Fair Employment and Housing Act (FEHA) requires an employer to take all reasonable steps to prevent discrimination and harassment from occurring. (Gov. Code, §§ 12940, subd. (k) & (j)(1).) Failing to take such reasonable steps constitutes a separate unlawful employment practice for which a defendant can be held liable. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040.) Thus, for example, evidence of discrimination against other employees which occurred before the unlawful conduct against the plaintiff is directly relevant to the employer’s failure to take reasonable steps to prevent discrimination from occurring. To the extent the employer knew of discrimination occurring in its ranks and did nothing to investigate, remedy the problem, or take other reasonable steps, the employer violated Government Code section 12940, subsections (k) & (j)(1). A plaintiff must be provided the opportunity to show that this omission contributed to the unlawful treatment of him or her.
Evidence of other acts of discrimination by the employer may also be directly relevant to the issue of whether the employer acted with malice, fraud or oppression, and is therefore liable for punitive damages. Evidence of other discrimination claims will help establish the employer’s knowledge of the conduct, and its failure to take corrective action. This is directly relevant to the plaintiff’s claims for punitive damages. (See Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 988-989, overruled on other grounds in Lakin v. Watkins Assoc. Ind. (1993) 6 Cal.4th 644 [evidence of a harasser’s sexual misconduct with other female employees admissible as an ‘operative fact’ because it demonstrated the employer’s knowledge of the harasser’s behavior and complaints about that behavior]; Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 419 [employer is liable for punitive damages if it hires or retains a harassing employee with knowledge of his unfitness or with conscious disregard of it, or if it ratifies the employee’s conduct].)
In Gober v. Ralphs Grocery Company (2006) 137 Cal.App.4th 204, the court discussed the factors to be considered in assessing the appropriateness of the amount of punitive damages awarded against a defendant. The court recognized that the degree of reprehensibility of the defendant’s misconduct is the most important factor to be considered in assessing the reasonableness of a punitive damages award. (Id. at p. 219.) Five sub-factors are considered in assessing the degree of reprehensibility: (a) whether the harm was physical as opposed to economic; (b) whether the conduct evinced an indifference to or a reckless disregard of the health or safety of others; (c) whether the victims were financially vulnerable; (d) whether the conduct was an isolated incident or repeated; and (e) whether the tortfeasor acted with intentional malice. (Ibid.)
The employer’s history of engaging in discrimination, harassment or retaliation is thus directly relevant to the determination of whether its conduct was an isolated incident or repeated, and whether it acted with intentional malice. This is thus an important area to probe in discovery.
The harasser’s personnel file
In prosecuting a discrimination, harassment, or retaliation case, plaintiff’s counsel should attempt to obtain records demonstrating whether the alleged perpetrator of the discrimination, harassment, or retaliation was counseled for his or her conduct, received adequate training, and whether or not he or she has had prior incidents of similar inappropriate conduct. Employers generally resist producing such documents.
California law permits a plaintiff to obtain documents contained in the personnel file of an alleged perpetrator of harassment, discrimination, or retaliation. (See Bihun v. AT&T Information Systems, Inc., supra, 13 Cal.App.4th at pp. 989, 991 [trial court properly instructed the jury on willful suppression of evidence when the defendant failed to produce the harasser’s personnel file]; Ragge v. MCA/Universal Studios (C.D. Cal. 1995) 165 F.R.D. 601, 605 [supervisor’s right of privacy outweighed by the plaintiff’s need to discover supervisor’s performance documents in sexual harassment and retaliation case].)
In Bihun, the defendant employer failed to produce the harasser’s personnel file at trial pursuant to a California Code of Civil Procedure section 1987 demand. As a result, the trial court instructed the jury on willful suppression of evidence. The Court of Appeal affirmed this instruction, in part, because “it was reasonably probable [the harasser’s] performance evaluations and any complaints of sexual harassment would be in his personnel file” and, thus, those documents were admissible. (Bihun v. AT&T Information Systems, Inc., supra, 13 Cal.App.4th at p. 994.) If a personnel file is admissible at trial, by definition it is discoverable because it is reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.)
Similarly, in Ragge, the court held that the disclosure of information and documents in an alleged harasser’s personnel file is warranted when a plaintiff narrows the request to seek specific, relevant documents contained in the personnel file. (Ragge v. MCA/Universal Studios, supra, 165 F.R.D. at p. 605.) The Ragge Court concluded that a wide range of information found within the alleged harasser’s personnel file is discoverable and relevant: “[D]ocuments pertaining to promotions or demotions, disciplinary proceedings, work performance reviews and evaluations, and complaints, are relevant, among other things, to the employer’s knowledge of a hostile work environment. Such documents also pertain to the credibility of witnesses, including the named defendants, and provide a means to compare statements made during depositions to documents maintained by the employer. Resumes and employment applications in the personnel files of named defendants are relevant to employer’s knowledge of a harasser’s prior history of harassment, and thus, relate to the claim against [the employer], as it pertains to … the alleged harassers.” (Ibid.)
Thus, plaintiff’s counsel should conduct targeted discovery designed to elicit information about the perpetrator of discrimination, harassment, or retaliation.
Witness contact information
Employers often refuse to provide the contact information of witnesses who may have knowledge relating to the plaintiff’s claims or the employer’s defenses, asserting that the witnesses may be contacted through the employer’s counsel. This shielding of witness contact information is not proper.
Code of Civil Procedure section 2017.010 specifically allows for the discovery of the identity and location of potential witnesses. (Code Civ. Proc., § 2017.010; see also Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [compelling disclosure of contact information of potentially thousands of employees, reasoning that “contact information is reasonably understood as a legitimate ‘starting point for further investigations’ through which a plaintiff may ‘educate [himself or herself] concerning [the parties’] claims and defenses.’” (Citing Puerto v. Superior Court (2009) 158 Cal.App.4th 1242, 1250, 1249); People v. Dixon (2007) 148 Cal.App.4th 414, 443 [“disclosure of the names and addresses of potential witnesses is a routine and essential part of pretrial discovery”].)
Unless the employer will stipulate to allow the plaintiff to depose witnesses or subpoena witnesses to trial by a deposition subpoena or notice to appear at trial served on the employer’s counsel as if they were parties, the plaintiff should insist on obtaining contact information during discovery, so that the witnesses can be located and served with subpoenas, if necessary.
If there is any issue as to whether a harasser was a supervisor or not, the plaintiff should seek discovery of documents and information that would have any bearing on whether the perpetrator of the harassment was a supervisor. An employer is strictly liable for a supervisor’s harassment of another employee. (See State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1041-1042; Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1420.)
Under California law, a supervisor is defined as “any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” (Gov. Code, § 12926, subd. (r).) Thus, a person having the responsibility to direct an employee’s day-to-day duties, such as a lead or captain of a team, is a supervisor under the Fair Employment and Housing Act for purposes of sexual harassment liability, even if he or she lacks the authority to hire, fire, promote or transfer the employee. (Chapman v. Enos (2004) 116 Cal.App.4th 920, 930-931 [finding that an individual was a supervisor because he directed the employee’s day-to-day duties].) Where there is any dispute as to whether a harasser was a supervisor or not, it is important to obtain the information necessary to make that determination.
When seeking to recover punitive damages against a corporation for an employer’s conduct, a plaintiff must establish that the wrongful act was committed by an agent or employee of the corporation who was an officer, director, or managing agent of the corporation. (Civ. Code, § 3294, subd. (b).) Where the employer is a corporation, an important area of inquiry during discovery, therefore, is whether the individual who engaged in oppressive, fraudulent, or malicious acts towards the plaintiff had the type of discretionary authority that would qualify him or her as a managing agent.
A managing agent is a corporate employee who exercises “substantial independent authority and judgment in [his or her] corporate decisionmaking so that [his or her] decisions ultimately determine corporate policy.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567.) Thus, the standard is higher to qualify as a managing agent than to qualify as a supervisor, as discussed in the previous section. An individual who has the authority to hire and fire will not necessarily qualify as a managing agent, absent having broad discretionary authority over decisions that ultimately determine corporate policy. (Id. at p. 577.)
Counsel should conduct targeted discovery designed to elicit as much information as possible about the wrongdoer’s specific job responsibilities, including whether he or she supervises other employees, and if so, how many; whether he or she supervises or oversees departments and if so, which ones and what the supervision duties consist of; his or her authority to set salaries, promote employees, transfer employees, discipline employees, and determine job titles; whether he or she attends meetings where policies are discussed; and his or her level in the corporate hierarchy.
Documents relating to the employer’s investigation
Often, an employer will conduct an investigation in response to either the plaintiff-employee’s complaint about improper conduct in the workplace, or a complaint lodged against the plaintiff-employee. Plaintiff’s counsel should seek documents relating to any such investigation, including witness statements, the investigator’s notes, reports, and any findings or conclusions.
When the investigation is conducted by an attorney, the employer may refuse to produce documents related to the investigation based on claims of the attorney-client privilege and/or the attorney work product doctrine. However, even where an investigation is conducted by either in-house counsel or outside counsel hired by the employer, the documents relating to such investigation are not always privileged. For example, a report that does not contain confidential legal advice or that merely summarizes the investigation or presents factual conclusions is not privileged simply because it was prepared by an attorney. (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 121-122.)
Moreover, to the extent the employer intends to rely in its defense of the lawsuit on any investigation conducted by the employer into the plaintiff’s claims, the employer will be precluded from using the attorney-client privilege or the attorney work product doctrine as a shield against discovery. (Id. at p. 128.) If the employer intends to withhold information regarding the investigation it conducted through its counsel, the employer will be deemed to have waived the right to rely on any such investigation in its defense at trial: “If a defendant employer hopes to prevail by showing that it investigated an employee’s complaint and took action appropriate to the findings of the investigation, then it will have put the adequacy of the investigation directly at issue, and cannot stand on the attorney-client privilege or work product doctrine to preclude a thorough examination of its adequacy. The defendant cannot have it both ways. If it chooses this course, it does so with the understanding that the attorney-client privilege and the work product doctrine are thereby waived.” (Ibid).
The analysis is different where the investigation is not conducted by the employer’s attorney, but rather by a non-attorney, such as a human resources specialist. In such cases, the employee is entitled to the substance of the internal investigation conducted by the non-lawyer, but confidential communications between the investigator and the employer’s attorney may still be protected from disclosure by the attorney-client privilege and/or attorney work product doctrine. (Kaiser Foundation Hospitals v. Superior Court (1998) 66 Cal.App.4th 1217, 1227-1228).
In employment cases, the bulk of the evidence tends to be in the employer’s possession. It is thus extremely important for the employee to conduct targeted discovery to obtain the information and documents that will allow them to defeat a summary judgment motion and prevail at trial. While it is not possible for an article of this length to address every possible discovery issue that may arise, the foregoing discussion is intended to provide a starting point with some of the common discovery issues that frequently arise.
Iris Weinmann is a partner in Greenberg & Weinmann, located in Santa Monica. Ms. Weinmann has concentrated her practice on the representation of employees in civil rights and other employment-related litigation since 1994. Together with her partner, Paul Greenberg, Ms. Weinmann has successfully tried multiple employment cases to verdict. She has also argued several appeals before the Court of Appeal for the State of California. Ms. Weinmann is a frequent contributor to the Advocate’s annual Employment Law issue.
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