Discovery in Employment Law Cases

After you file a lawsuit in an employment law case, you are entitled to obtain information from the company and any individual defendants who you sued. The process you use to obtain this information is called discovery.

Discovery in employment law cases usually is critical since it is your best (and often only) opportunity to obtain information and evidence to prove your case and establish your damages.

Keep in mind discovery is a two way process. Your former employer can ask you for information using the same forms of discovery you can use to obtain information from it. We have described the most common forms of discovery below.

Interrogatories are formal written questions parties to a lawsuit send to each other to learn about each other's claims and defenses. For example, you can ask your employer for a list of witnesses in your case and a description of what they know about the relevant facts; details about why they took certain actions against you; information about your salary and benefit history to help prove your damages; and details about any expert witnesses it hired to testify on its behalf.

A document request (also called a “document demand” or “notice to produce documents”) is a request you can send to another party to your case seeking documents. It can include requests for specific documents, such as your employment contract, offer letter, performance reviews and termination letter. It also can include descriptions of categories of documents you are seeking such as documents your employer considered when it made the decision to fire you or otherwise discipline you, and documents regarding your salary and benefits.

Depositions are, in essence, interviews under oath. The attorney taking the deposition asks the witness questions in an effort to learn about the case, support your claims, and be ready to prepare for the problems and issues that are likely to come up at trial.

Depositions often are one of the most important forms of discovery in employment law cases since try can be the best opportunity to learn what happened and the reasons for it. Your lawyer can take depositions of key witnesses such as your immediate supervisor, the individual who harassed you, or the people involved in the decision to wrongfully terminate your employment. Depending on the circumstances, it also can be important to take the depositions of members of the employer’s human resources department and eyewitnesses to the key events in your case, or other individuals with important relevant knowledge.

Requests for Admissions basically are a list of facts that you ask your former employer to admit are true. They can be used to establish basic facts that are undisputed but might be difficult to prove, such as confirming key dates and the authenticity of important documents. Similarly, they can be used to confirm information that you learned through interrogatories, document requests and depositions.

While requests for admissions are used less frequently than interrogatories and document requests, they can be much more powerful since facts that are admitted in response to them generally cannot be disputed at the trial.

A subpoena is an order or command that requires a witness to testify at a deposition or at trial and/or to produce documents. They are one of the primary ways to obtain information from someone who is not a party to your employment law litigation but has pertinent information, such as from former employees, or the employee's agents, customers or clients.

In addition to conducting discovery about the facts of your case, many employment law cases also involve discovery from expert witnesses. Expert witnesses are required to provide formal written opinions that explain their opinions. You can obtain additional information from expert witnesses using interrogatories, document requests and depositions. For more information about the most common types of expert witnesses in employment law cases please see our expert witnesses page.