These Protocols were developed over the course of eighteen months by a joint committee consisting of NELA members and members of the management bar. The project was supervised by Judge John G. Koeltl (S.D.N.Y.), and the final protocols were adopted by the Judicial Conference Advisory Committee...
Initial Discovery Protocols For Employment Cases_Nov 2011.pdf
NELA developed this Fact Sheet to help NELA members and other workers' rights advocates understand the recently adopted Initial Discovery Protocols For Employment Discrimination Cases, as well as to provide background information on the development of the protocols, summarize the benefits provided by the Protocols, and suggest ways in which attorneys can help encourage the judges before whom they appear to adopt the Protocols
NELA Fact Sheet_Implementating The Initial Discovery Protocols_Feb 2012.pdf
The Committee is also considering changes to Rule 26(b), which would remove the well-understood language regarding the scope of discovery (“[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence”). The rule change would replace this language with “[i]nformation within the scope of discovery sought need not be admissible in evidence to be discoverable” as well as add new limitations to discovery based on proportionality
The article summarizes the recently adopted Initial Discovery Protocols For Employment Cases and includes commentary from Judge John G
The Third Branch_Employment Discovery Protocols Article_Feb 2012.pdf
Two additional proposed rules regarding proportionality and spoliation also would have affected plaintiffs’ ability to obtain discovery of evidence asymetrically in employers’ hands and make it harder to obtain a remedy for destruction of evidence. Proposed Rule 26(b) would have eliminated long-standing language stating that information reasonably calculated to lead to the discovery of relevant information is discoverable.Instead, the revised Rule 26 enhanced the importance and role of proportionality and specifically required consideration of, first and foremost, the amount in controversy, and then the importance of the issues, the parties’ resources, the importance of the discovery and whether the burden or expense of production outweighed its likely benefit. Proposed Rule 37(e) regarding the failure to make disclosures or to cooperate in discovery would have applied to all discoverable information, not just electronically stored information (ESI).Additionally, the standard to obtain a curative instruction or sanctions for spoliation or destruction of evidence would have been heightened to requiring proof of willfulness or bad faith
1 Comment - The rejection of the more draconian rules can be cited in any discovery motion. This alone pays for our NELA membership in the effectiveness category!
Circuit Nominee Halligan Filibustered Again, Circuit Court Hearings Continue & Votes Delayed Republican-Led House Judiciary Subcommittee Holds Hearing On Corporate Justice System House Committee Marks Up Legislation To Address NLRB Appointment Standstill White House Needs Names For Vacancies NELA Bill Chart For The 113th Congress Administrative/Executive Branch News OFCCP Offers March 22 Webinar Regarding February 28 Rescissions NLRB Seeks Supreme Court Review In Noel Canning Case NELA Participates In EEOC Roundtable On Quality Control Plan NELA Comments On Proposed Discovery Rule Changes #JudicialNominations #AFA #Publication #AttorneysFees #FederalRules #WageHour #DOL #ForcedArbitration #EEOC #LegislativePublicPolicy #CJTFA #Newsletter #NLRB #ContinuingLegalEducation #Membership #Discovery #OFCCP
Judicial Conference's Advisory Committee on Civil Rules concerning potential changes to certain civil discovery rules that the Advisory Committee will discuss at its April 2013 meeting
NELA Comments 2.18.1411.pdf
NLRB Hearing NELA Bill Chart (NBC) For The 113th Congress Administrative/Executive Branch News URGENT Reminder: March 1 Deadline To Submit Comments On Changes To Proposed Discovery Limits OFCCP Rescinds Bush-Era Compensation Standards, Takes Steps To Ensure Fair Pay For All Workers NELA Joins 37 U.S. Senators Urging President Obama To Issue LGBT Federal Contractor Executive Order Department Of Labor Issues NELA-Influenced Updated FMLA Regulations NELA Submits Comments To DOL On ALJ Hearing Rules & Practices #ForcedArbitration #LGBT #OFCCP #FederalEmployees #AttorneysFees #Publication #Discovery #DOL #NLRB #LegislativePublicPolicy #AFA #FMLA #Newsletter #Membership #FederalRules #USERRA #CJTFA #JudicialNominations #FLSA #Affiliates
* The Judicial Conference of the United States is proposing to change drastically the Federal Rules of Civil Procedure to limit discovery significantly
Template for Public Comments with Chart_08 16 2013.pdf
In employment cases, evidence that goes to proving the defendant’s intent or information about institutional practices that may bear on the question of intent will rarely be available to plaintiffs without discovery. Professor Malveaux contended that the lack of access to discovery will doom many plaintiffs in employment cases
Additional topics include discovery, overcoming fact-finder bias at jury selection and in trial, the use of experts, successfully crafting remedies that address hidden bias issues, and much more
CLE Online
Wal-Mart , which found that even the most sophisticated plaintiff will not have enough information about an employer’s internal monitoring program before discovery to allege facts with any specificity
Final Amicus Brief - Bafford v. Northrop Grumman.pdf
The Supreme Court said that requiring such specific pleading is inappropriate because (1) there are other ways to prove discrimination besides the McDonnell Douglas inference; (2) “[b]efore discovery has unearthed relevant facts and evidence, it may be difficult to define the precise formulation of the required prima facie case”; and (3) the rules only require a plaintiff to “give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.”
Our brief also contends that vindication of pattern-or-practice claims is vital to achievement of Title VII’s purpose and is largely infeasible on an individual basis due to limitations on the scope of discovery in bilateral adjudications, the substantial costs of proving a pattern-or-practice claim, and limitations on the scope of injunctive relief
Parisi v Goldman Sachs_NELAAmiciCuriaeBrief_Final_070212.pdf
Following the unanimous Advisory Committee recommendation that the Duke Subcommittee's proposed discovery rule amendments package be approved for publication, the Standing Committee voted to adopt the Advisory Committee's recommendation at its meeting in early June