Published in the American Association for Justice, Employment Rights Newsletter

There is a general perception that the only way to obtain information from the defense is by sending out interrogatories. This is a misconception. There are various alternatives when seeking information that are cheaper, more expeditious, and may be more effective.

A plaintiff’s attorney must take steps to be creative and efficient when representing his/her client so as not to bankrupt an hourly paying client or bankrupt his/her firm if the client is under a contingency retainer agreement. While interrogatories are the traditional approach to obtaining certain facts, alternatives exist to be used in conjunction with and/or in place of interrogatories.

This article provides alternatives to traditional interrogatories in an effort to save time, money and, in light of recent limitations placed on interrogatories, deal with additional obstacles thwart the justice our clients seek.

Interrogatories and the Traditional Approach to Using This Discovery Device

Interrogatories have always been one of many discovery devices we used to try to obtain information cheaply and quickly from the opposing party.  In all forms, they are helpful in preparing for depositions and trial.

However useful, they have never been a panacea.  We have always suffered needless objections from adversaries claiming that the information we seek is not relevant or that our tailored demands are overly burdensome. We have needed to seek court intervention in determining the validity of our interrogatories. Sometimes the additional effort pays off, but all too often the extra time and money is wasted.

In light of recent developments we plaintiffs’ attorneys are being forced to be more efficient in how we use interrogatories and more creative in how we will represent our clients with significant limitations on the use of interrogatories. Today, plaintiff’s attorneys need to use guerilla warfare to assist their clients and not continue to follow the traditional protocol. A hypothetical will illustrate the other options for attorneys to implement when seeking important and relevant information. 

Working Fact Pattern 

Melissa, an investment banker, was fired from XYZ firm. Melissa had been there for approximately five years when she was told that her services were no longer necessary. She had been considered a valuable employee by her previous firm, and was brought over to XYZ firm eight months earlier as part of a merger. When Melissa joined XYZ firm she was assigned to a new male manager, Alex. Alex excluded Melissa from important client meetings and projects that would provide her exposure and advancement opportunities. Alex also thought that women should not have careers in investment banking. Prior to Melissa’s termination, Alex regularly made comments to Melissa and other female employees that they should get married and stay home and have babies. Alex also said that the financial world is not a place for women employees. Alex prevented Melissa from advancement by consistently selecting her less-experienced male colleagues over her. Melissa made several complaints to Human Resources about Alex, specifically about the lack of advancement opportunities and the discriminatory comments. Human Resources supposedly looked into her complaints and found that they were unsupported; however, Human Resources never spoke to any of Melissa’s colleagues, but only to Alex, who denied making the comments.

Melissa was then terminated. Upon termination, Alex told Melissa that it was best for Melissa and Melissa’s family if she were not working anymore. Melissa later learned that her position was not eliminated—as she was lead to believe—but that she was replaced by a male colleague.

After being terminated, Melissa spoke to an attorney. She had the following options: (a) file a complaint in State Court; (b) file a complaint with the New York City Commission on Human Rights;(c) file a complaint with the New York State Division of Human Rights; or (d) file a complaint with the Equal Employment Opportunity Commission (“EEOC”). Melissa and her attorney chose to file a complaint with the EEOC and cross-file it with the State Division of Human Rights, with the EEOC reviewing the matter. Melissa’s matter was not resolved at the EEOC and, after receiving a Right to Sue letter, her attorney filed her complaint in Federal Court.

The question: What next steps will Melissa’s attorney implement?

Some Alternatives to the Traditional Approach to Interrogatories:

Some alternatives that Melissa’s attorney can employ include, but are not limited to the following:

1. Streamline Interrogatories;
2. Prepare and send out Investigative Letters;
3. Send Requests for Admissions;
4. Make FOIA Requests;
5. Review Corporate Filings;
6. Review Google

Streamline interrogatories – While many attorneys use their previous bank of interrogatories for each case before them, this will no longer work.  Instead, it is necessary to streamline the interrogatories and limit them to 5-6 pointed, necessary questions..  Create a“to prove” list;that is, the items that need to be proved at trial and how information related to them might be obtained,, whether it be by interrogatory, document request, or depositions. Most attorneys take the time to make a “to prove” list when preparing for trial, but it would be better for the attorney (and the client) if this process is done at the onset of the litigation. The attorney should look at the particular causes of action and see what will be needed for trial and then send out a limited number of interrogatories.

Limiting the number of interrogatories will assist the litigation in moving forward as less controversy will result over the requests. Limiting the interrogatories will also prevent unnecessary delay and cost in fighting over what may turn out to be insignificant requests at a later date.

Attorneys should seek only what they need and do the work in advance of trial so that the litigation can be kept clear and concise to the betterment of the case and the client’s wallet. This is one of the steps that Melissa’s attorney used in representing Melissa.

Investigative letters – Many attorneys are fearful of contacting potential witnesses because they are concerned that the witnesses may have worked for the company. Besides being fearful, other attorneys do not even consider sending investigative letters because it is outside of the traditional litigation practice. However, in New York, Niesig v. Team I and its case law prodigy permits ex parte communications with corporate clients.  Note: This may be true in other states as well. An attorney should review case law and his/her state’s disciplinary rules to understand what he/she can do with respect to sending out these letters.

There are specific requirements to be followed when contacting corporate clients, as an attorney cannot contact those who are considered “represented” individuals. Specifically, an attorney cannot contact:

1. the brains of operations (CEO, CFO, etc. – anyone in the C-suite);
2. those whose acts will bring liability to the corporation; and
3. those working with the legal team.

Attorneys can, however, contact all former employees and those employees who do not fall within any of the above-referenced categories. It is important for an attorney to do due diligence prior to contacting potential witnesses. In doing due diligence the attorney may want to do the following, among others:

1. get a list of potential witnesses from his/her client;
2. find out the person’s name, title and what information the client believes this person maintains;
3. search the company website to determine if the potential witness may be considered the brains of the company or working with the legal department;
4. ask opposing counsel who he/she represents or who may be working with them to review and assess the matter;
5. do a search on the Internet to obtain information on the potential witness to see if he/she falls into any of the above categories; and
6. review the file already prepared on the matter.

In preparing investigative letters, such as in Melissa’s case, the attorney may want to seek pertinent information, in particular: whether an employee handbook exists that prevents discrimination and/or retaliation; if anyone knows of other employees who either witnessed this conduct by Alex or were subjected to it themselves; whether Human Resources investigated the matter; and/or whether Melissa’s position was truly eliminated or if she was replaced by a male employee.

Management attorneys will most likely object to the above efforts. However, provided an attorney complies with the Niesig case or the governing cases in his/her jurisdiction, an attorney will have acted properly. The true reason for management’s objections is not that the acts by plaintiff’s attorneys are improper but that they cannot control the situation. They do not know who is cooperating with plaintiff’s counsel and what they are saying. Counsel may also object bystating that plaintiff’s counsel is merely trying to portray management in a poor light or drum up business.

In an effort to be extra prudent, the letters sent should be carefully worded so that they do not state that anything wrong took place. A defamation suit by management’s counsel would not help a plaintiff attorney’s client. The Niesig law and its progeny should be carefully reviewed and followed so that these objections can be squashed. The attorney may want to include a disclaimer that the letters are not a solicitation of business, not meant to obtain confidential information, and should be discarded if the person to whom it was sent was one who fell into any of the “represented” persons categories.There is also nothing wrong with an attorney contacting potential witnesses by phone, provided the individual is not a “represented” person.

Melissa’s attorney began contacting witnesses by using investigative letters prior to any decision being made by the EEOC, since there was no reason to delay until litigation was commenced to seek potential witnesses and gather information.

Requests for Admission – Another strategy Melissa’s attorney used was a Request for Admission. This is a device in which the attorney prepares specific statements to which opposing counsel must respond. This document must be drafted with precision and is used to establish specific facts. The attorney must respond to the request for admission within 30 days otherwise the statements within are deemed to be admitted.

Requests for admissions are similar to interrogatories, but each “question” is in the form of a declarative statement of which a response is demanded.  Requests for admissions help to narrow the scope of the controversy by getting certain admissions or denials on record prior to the trial taking place.  Unlike interrogatories, there is generally no limitation on the number of requests for admissions that can be sent out. If the matter is not admitted, the answer must contain a specific denial or state with particularity why the party cannot admit or deny it. The answering party may assert a lack of knowledge or information as a reason for failing to admit or deny the statement, but only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny. If an objection is rendered, the grounds for such objection must be stated. A matter admitted is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Many attorneys are unaware of the implication of failing to abide by the strict deadlines of the requests for admission, and thus the use of this discovery device may be highly beneficial for a plaintiff’s attorney. Different rules and factors are to be considered in federal and state actions and should carefully be reviewed prior to being implemented. Requests for admissions may require some thought and consideration but do not generally result in conflict and therefore help an attorney, like Melissa’s, save money for the client.

FOIA requests – Melissa’s attorney filed claims with the New York State Division of Human Rights and the EEOC to be reviewed by the EEOC. When a claim is cross-filed it is generally reviewed by one of the two agencies. After a decision is rendered the file may be closed at the administrative agency. However, that does not preclude the Complainant (person making the complaint) to request a copy of his/her file. Melissa’s attorney prepared a simple letter from Melissa requesting a copy of the complete EEOC file. This file may include the investigator’s notes, or statements from potential witnesses on management’s side, as well as any documents or information provided by management counsel when defending against Melissa’s claims for discrimination and/or retaliation.

FOIA requests are a good means of obtaining information. The cost is minimal, if anything at all. Many times the request may even be processed via email. As such, attorneys should consider using this cheap tool available to them and should seek as much information as the agency will share. It cannot hurt to know what opposing counsel has already set forth as their rationale for their defense.

Review Corporate Filings – In Melissa’s matter, she worked for a public company. As such, there may be records on file of claims of discrimination that have been published and can be found even if the company is trying to them. There may also be information regarding corporate salaries, recent hirings and/or firings, promotions, diversity statistics, etc. Corporate filings are generally open to the public. If there is a specific filing an attorney is looking for that is not readily available there may be a website that he/she can subscribe to for a limited cost that would allow access to this information. It could be detrimental to an attorney’s case not to review what the company already has shared publicly at minimal cost to the client.

Google Search – Using a search engine such as Google may provide insight into whether other actions for discrimination and/or retaliation have been brought by current or former employees of XYZ firm. It may also provide information regarding Alex’s previous employment history and whether or not he has personally been the subject of any other lawsuits.

If an attorney has a list of potential witnesses that he/she wants to contact but does not have contact information for, a simple Google search may provide the results without having to wait for a response to an interrogatory that may or may not come. Comparator information may also be obtained by doing an Internet search. Also, information on the company that may be beneficial to the case.

The cost of using a search engine: FREE. No harm can come to a client by searching the Internet to see what information may be gleaned that can help in the client’s case. Information obtained on the Internet can then be confirmed either through interrogatory, information received from document requests, depositions, or even the requests for admission.

Conclusion

As stated above, Melissa’s attorney employed each of the above tactics instead of simply following the expected litigation protocol. While interrogatories may yield much pertinent information, they may also result in unwarranted controversy or information provided that is controlled by the corporation. By utilizing the above strategies, Melissa’s attorney was able to obtain information that XYZ firm may not willingly reveal and uncover information that he/she otherwise would not have known to request. Melissa’s attorney’s creative efforts helped to limit financial outlay and gain negotiating leverage throughout the litigation without undue court proceedings. Like Melissa’s attorney, attorneys representing plaintiffs should be creative in their efforts to represent their clients.