Synopsis
1 Introduction
2 The Purpose of a Deposition
3 Who Should Be Deposed?
[1]The Deposition of the Plaintiff by the Defendant
[2]The Deposition of the Defendant(s) by the Plaintiff
[a]The Plaintiff's Supervisor
[b]Key Decision Maker of Employer
[c]Human Resources Personnel
[d]Former Co-Workers of the Plaintiff
[e]Person Designated to Testify on Behalf of Corporation
[f]Employer's Officers or Executives
[3]The Deposition of Third Parties
[a]Former Employees
[b]Family Members of Plaintiff
[c]Treating Physician as a Percipient Witness
[d]Custodians of Business Records
[e]Out-of-State Witnesses
[f ]Deposition of EEOC Investigators
[4]The Deposition of an Expert Witness
4 Scheduling the Deposition
[1]When Should the Deposition Be Scheduled?
[2]The Sequence of the Depositions
[3]Where Should the Deposition Take Place?
[4]Should the Client Be Present?
5 Does the Deposition Best Serve Your Client's Needs?
6 Preparing to Take a Deposition
[1]Conduct Extensive Discovery before the Deposition
[a]Mandatory Disclosure Pursuant to Rule 26
[b]Document Demands
[i]Sample Document Demand Propounded by Plaintiff to Defendant
[c]Interrogatories
[i]Sample Interrogatories Propounded by Plaintiff to Defendant
[ii]Sample Interrogatories Propounded by Defendant to Plaintiff
[d]Requests for Admissions
[e]Subpoena of Third-Party Records
[2]Electronic Discovery
[a]Introduction
[i]The Amendments to the Federal Rules of Civil Procedure
[ii]Accessible versus Non-accessible Sources
[iii]Form of Production
[iv]Privilege
[v]Sanctions and the Safe Harbor Provision
[b]The Preservation Obligation
[i]Implementing a Litigation Hold
[c]Retention Policies
[i]Other Electronic Data Policy Tips
[d]Rule 30(b)(6) Deposition regarding ESI
[3]Is a Protective Order Needed?
[4]The Defendant Should Conduct a Comprehensive Internal Investigation
[5]Review the Case File and Documents
[6]Understanding the Legal Issues Involved-- Research Is Key
[7]Determine Objectives of the Deposition
[8]Consult with Expert if Necessary
[9]Prepare Deposition Outline
[10]Prepare Exhibits in Advance
Sample Stipulated Protective Order
Exhibit A--Affidavit of Compliance with Protective Order
7 General Deposition Techniques
[1]Open-Ended and Leading Questions
[2]Demeanor of Attorney
[3]Scattering the Issues
[4]"Close Out" Each Topic
[5]Prior Inconsistent Statements
[6]How to Handle Deponents Who Cannot Recall Information
8 Retaining Control of the Deposition
[1]Handling Hostile Opposing Counsel
[2]Instructions Not to Answer
9 Videotaping Depositions
[1]Advantages of Videotaping
[2]Any Party Can Videotape a Deposition
[3]Cost Should Be Considered When Deciding Whether to Videotape
[4]Other Reasons Why a Party Should Not Videotape
10 Preparing Yourself to Defend a Deposition
[1]Defining Your Objectives
[2]List of Common Objections
[3]Cross-Examining Your Own Witness
[4]Privilege Issues and Instructions Not to Answer
11 Preparing the Witness for a Deposition
12 Beginning the Deposition
[1]Sample Admonitions
[2]Sample Questions to Elicit Background Information
13 Common Topics Relevant to Discrimination Cases
[1]—The Plaintiff’s Application and Resume, and the Interview
and Hiring Process
FORM NO. 1: Plaintiff’s Application and Interview—
Defendant’s Questions for Plaintiff
FORM NO. 2: Plaintiff’s Application and Interview—
Plaintiff’s Questions for Defendant’s Agent
[2]—Employment At-Will
FORM NO. 3: Employment At-Will—Defendant’s
Questions for Plaintiff
FORM NO. 4: Employment At-Will—Plaintiff’s
Questions for Defendant’s Agent
[3]—Employee Handbook and Company Policies
FORM NO. 5: Employee Handbook/Policies—
Defendant’s Questions for Plaintiff
FORM NO. 6: Employee Handbook/Policies—Plaintiff’s
Questions for Defendant’s Agent
[4]—The Plaintiff’s Performance
FORM NO. 7: Plaintiff’s Performance—Defendant’s
Questions for Plaintiff
FORM NO. 8: Plaintiff’s Performance—Plaintiff’s
Questions for Defendant’s Agent
[5]—The Plaintiff’s Supervisors
FORM NO. 9: Plaintiff’s Supervisors—Defendant’s
Questions for Plaintiff
FORM NO. 10: Plaintiff’s Supervisors—Plaintiff’s
Questions for Plaintiff’s Supervisors
[6]—Treatment of Similarly Situated Employees
FORM NO. 11: Treatment of Similarly Situated
Employees—Defendant’s Questions for
Plaintiff
FORM NO. 12: Treatment of Similarly Situated
Employees—Plaintiff’s Questions for
Plaintiff’s Supervisor
[7]—Record of Disciplinary Actions
FORM NO. 13: Disciplinary Records—Defendant’s
Questions for Plaintiff
FORM NO. 14: Disciplinary Records—Plaintiff’s
Questions for Defendant’s Agent
[8]—Reason For Termination of the Plaintiff’s Employment
FORM NO. 15: Plaintiff’s Discharge—Defendant’s
Questions for Plaintiff
FORM NO. 16: Plaintiff’s Discharge—Plaintiff’s
Questions for Defendant’s Agent
[9]—Prior Lawsuits and Administrative Complaints
FORM NO. 17: Prior Lawsuits/Administrative
Complaints—Defendant’s Questions for
Plaintiff
FORM NO. 18: Prior Lawsuits/Administrative
Complaints— Plaintiff’s Questions for
Defendant’s Agent
[10]—Deposition Testimony Pertaining to Common Topics
FORM NO. 19: Questions regarding Plaintiff’s
Application and Resume
14 Specific Types of Discrimination Claims
[1]Sexual Harassment
[a]Quid Pro Quo Harassment
[b]Hostile Work Environment
[c]Same-Sex Sexual Harassment
FORM NO. 20: Sexual Harassment--Defendant's Questions for Plaintiff
FORM NO. 21: Sexual Harassment--Plaintiff's Questions for Defendant's Agent
FORM NO. 22: Sexual Harassment--Examination of Plaintiff
FORM NO. 23: Sexual Harassment--Examination of Defendant
[2]Title VII
[a]Types of Claims
[i]Disparate Treatment Claims
[ii]Disparate Impact Claims
[b]Gender Discrimination
[c]Race and Color
[d]National Origin
[e]Religion
FORM NO. 24: Title VII Discrimination--Defendant's Questions for Plaintiff
FORM NO. 24A: Title VII Discrimination--Defendant's Questions for Plaintiff's Economic Expert Background
FORM NO. 25: Title VII Discrimination--Plaintiff's Questions for Defendant's Agent or Supervisor
FORM NO. 25A: Title VII Discrimination--Defendant's Questions for Plaintiff in Sex Discrimination Case
FORM NO. 26: Title VII Sexual Harassment--Examination of Plaintiff
FORM NO. 27: Title VII Sexual Harassment--Examination of Defendant
[3]Age Discrimination
FORM NO. 28: Age Discrimination--Defendant's Questions for Plaintiff
FORM NO. 29: Age Discrimination--Plaintiff's Questions for Defendant's Agent or Supervisor
FORM NO. 30: Age Discrimination--Examination of Plaintiff
FORM NO. 31: Age Discrimination--Examination of Defendant's Agent
[4]Medical Condition/Disability Discrimination
[a]Introduction
[i]Overview
[ii]Disability Defined
[iii]Major Life Activity
[iv]"Qualified Individual"
[v]Harassment
[b]Plaintiff's Burden of Proof
[i]Discrimination Treatment Based on Disability
[ii]Failure to Provide a Reasonable Accommodation
[iii]Discrimination against Individual Who Has a "Record of" Disability
[iv]Discrimination against Individual "Regarded as" Disabled
[c]Defenses
[i]Undue Hardship
[ii]Requested Accommodation Is Unreasonable
[iii]Legitimate Non-Discriminatory Reason
[iv]Job-Related and Consistent with Business Necessity
[v]Direct Threat
FORM NO. 32: Plaintiff's Disability--Defendant's Questions for Plaintiff
FORM NO. 33: Plaintiff's Disability--Plaintiff's Questions for Defendant's Agent
FORM NO. 34: Medical Condition/Disability Discrimination--Examination of Plaintiff
FORM NO. 35: Medical Condition/Disability--Examination of Defendant
[5]Pregnancy/Family Care and Medical Leave
[a]Introduction
[b]Plaintiff's Entitlement to Protection
[c]Employer's Duty to Investigate
[d]Prima Facie Case
[e]Limited Defenses to FMLA Claims
[f]Pregnancy Discrimination Act
FORM NO. 36: Plaintiff's Pregnancy/Family Care and Medical Leave--Defendant's Questions for Plaintiff
FORM NO. 37: Plaintiff's Pregnancy/Family Care and Medical Leave--Plaintiff's Questions for Defendant's Agent
FORM NO. 38: Pregnancy and Family Leave--Examination of Plaintiff
FORM NO. 39: Pregnancy and Family Leave--Examination of Defendant
[6]Retaliation
[a]The Plaintiff's Prima Facie Case
[b]Defenses to Retaliation Claims
[i]Trivial Acts
[ii]No Causal Connection
FORM NO. 40: Retaliation--Defendant's Questions for Plaintiff
FORM NO. 41: Retaliation--Plaintiff's Questions for Defendant's Agent or Supervisor
FORM NO. 42: Retaliation--Examination of Plaintiff
FORM NO. 43: Retaliation--Examination of Defendant
[7]Sexual Orientation
FORM NO. 44: Sexual Orientation Discrimination--Defendant's Questions for Plaintiff
15 Damages
[1]Introduction
[2]Specific Damages Available to the Plaintiff
[a]Damages for a Violation of the Family and Medical Leave Act (FMLA)
[b]Damages for a Violation of Title VII (Including Sexual Harassment) and the Americans with Disabilities Act (ADA)
[i]Back Pay
[ii]Front Pay
[iii]Interest
[iv]Emotional Distress and Compensatory Damages
[v]Punitive Damages
[vi]Attorneys' Fees
[vii]Mitigation
[c]Damages for Age Discrimination under the Age Discrimination in Employment Act (ADEA)
FORM NO. 45: General Outline regarding Damages--Defendant's Questions for Plaintiff
Index
