AuthorAaron B. Maduff
A discovery plan is an organizational tool to be used throughout the litigation. It may take various forms,
e.g., a graph, a chart or a calendar. A discovery plan sets out the facts you need to prove, the evidence that will
establish those facts, the method of discovery by which you will obtain the needed evidence, and the anticipated
timing of discovery.
A discovery plan will help you:
Identify all the facts and evidence necessary to establish the elements of each cause of action alleged in
the complaint;
 
 
Develop the evidence you need to defeat a summary judgment motion.
In sex discrimination cases, two types of evidence are sought to establish an employment discrimination case.
Those two types are direct evidence and circumstantial evidence. The likelihood is that you will not be blessed with
direct evidence of employment bias, but it does happen. After 45 years since the passage of Title VII, corporate
bright is, well, really not very bright—even if that is the private view held by the decision makers. Sophisticated
employers spend untold human resources hours drilling managers and decision makers to wipe bias from the
of the sexual nature of the acts, you essentially already have direct evidence. Your discovery is going to develop
around showing the pervasiveness and severity of the acts, and the employer’s knowledge and failure to act to
end the harassment.
§ Direct Evidence
Courts have recognized that cognizant employers obfuscate and intentionally conceal their true motives upon
occasion when taking adverse employment actions. As noted in Kolstad v. American Dental Association, 527
U.S. 526, 551 (1999) “An employer may, for example conceal evidence regarding its ‘true’ selection procedures
because it knows they violate federal law.”
actions rather than the stupidity of actually admitting to an employee that bias is driving the decision. Numerous
federal court opinions have referenced the fact that direct evidence will undoubtedly be rare in employment dis-
crimination cases, because employers hold most of the evidentiary cards and may fortuitously during litigation
drop some of those very cards under the table—deliberately. In Dister v. Continental Group, Inc., 859 F. 2d 1108,
practitioners deliberately try to hide it. Employers of a mind to act contrary to law seldom note such a motive in
their employee’s personnel dossier.”
The Supreme Court, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), noted that direct evidence is
not stray remarks in the workplace, statements of non-decision makers, or statements by decision makers that
    
direct evidence and has turned the appellate courts loose to sort out the mess created. Generally, the courts have
    
are needed. Rogers v. City of Chicago, 320 F. 3d 748 (7th Cir. 2003); West v. Nabors Drilling USA, Inc., 330
F. 3d 379 (5th Cir. 2003).
In the happy event that you had direct evidence of discriminatory motive by the decision maker, the likelihood
that the employer will ever get a summary judgment is non-existent.
§ Circumstantial Evidence
The vast majority of employment discrimination cases are going to revolve around circumstantial evidence.
The Supreme Court has recognized fully that circumstantial and direct evidence stand on equal footing. In Desert
Palace Costa, 539 U.S. 90 (2003), the Supreme Court noted: “The reason for treating circumstantial and direct
certain, satisfying and persuasive than direct evidence.’”
Which brings us, as always, to McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which is the bedrock
of how a circumstantial evidence employment discrimination case is analyzed. The familiar three-prong test requires
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the Supreme Court noted that “the
prima facie case under McDonnell Douglas, however, is an evidentiary standard, not a pleading requirement. In
McDonnell Douglas, this Court made clear that ‘[t]he critical issue before us concern[ed] the order and allocation
of proof in a private, non-class action challenging employment discrimination.’”
needs to prove that the legitimate, non-discriminatory action was a pretext to mask employment discrimination.
In Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000), the Supreme Court did hold that the prima facie
case and evidence that the legitimate non-discriminatory reasons from the employer are not entitled to believe
   
battleground will almost always revolve around the question of whether the employer’s “legitimate, non-discrim-
In Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016), the 7th Circuit, sitting en banc, recognized
the method provided by McDonnell Douglas, but also insisted that all evidence must be taken as a whole to provide
a reasonable inference of discrimination and emphasized that this does not require slavish devotion to McDonnell
Douglas. Other circuits have followed suit. See e.g., Thompson v. DKalb County, GA, 2021 WL 5356283 (11th
Cir. 2021); McFadden v. County of Monroe, 672 Fed.Appx. 81(2nd Cir. 2016) (adopting Ortiz’s rejection of a
convincing mosaic and instructing on circumstantial evidence generally).
In developing your discovery plan, always keep in mind that the ultimate goal is most likely to discredit the
employer’s articulated reason for its actions. While the employer, in the McDonnell Douglas scheme, does not
have a burden of proof on its legitimate non-discriminatory reason, the reality is that the employer has to articulate
that reason. Life becomes easier if the employer starts shifting its reasons for its decision.
§7.1.2 WHEN
complaint. Update and revise the plan as the case progresses and the events evolve.
§7.1.3 HOW
§ Analyze Case in Terms of Discovery
§ Essential Elements of Claims and Defenses
Create a chart that lists each element of each cause of action alleged in the complaint and each element of the
taining this document on your computer makes it easy to add new information as it is developed during depositions.
§ Consider Various Discovery Methods
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7-3 DISCOVERY §7.1
 
 
 
 
 
§ Is It Admissible?
   
protests. Some records may also need to be produced pursuant to a subpoena, such as the harasser’s phone records.
Practice Note: Use a Request to Admit to authenticate documents
The work that needs to be done to authenticate documents can be immense in certain cases, particularly
sitions just to get your authentication and wasting valuable trial time with meaningless witnesses simply
to meet technical requirements. Use a Request to Admit pursuant to Rule 36 for this purpose (see §7.49).
It can save time and expense.
§ Calendar Deadlines
Prepare a calendar of upcoming events: the date discovery closes; the dates you plan to serve discovery and
when the responses are due; dates for disclosure of experts and their deposition completion dates. Generally, paper
Taking depositions without the documents is poor planning. You may want to reserve some of your interrog-
    
time prior to the 30th day before the close of discovery.
Formal discovery may begin after the Rule 26 disclosures and meeting with opposing counsel. See generally Task
19, §§7.12 et. seq. Informal discovery (such as interviewing witnesses and reviewing your client’s medical/psycho-
Completing all discovery within the time limits set by the court and well in advance of the trial date also
provides a cushion of time in which to prepare to defend against an anticipated summary judgment motion, if one
§ Estimate Costs
Estimate the cost of discovery, including attorneys’ fees, experts, and court reporter fees. Plan your discovery
   
(below) is going to turn the client away from pursuing the case.
§ Create Chart
Put the results of your analysis into a concise chart, with the following headings:
Date (to serve and to receive responses).
Discovery method.
Party/third party from whom you anticipate receiving information.
Evidence sought.
Admissibility (steps required to make the evidence admissible at trial).
Purpose of the evidence, i.e., what this evidence will be used to prove or disprove.
Costs of discovery.
§ Share Plan With Plaintiff
    
of upcoming costs. Not all costs will be expended at once. Depositions will come many months into a case, and
therefore plan to put money aside for these costs as the case progresses.

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