Legal Updates

Judges Offer Tips On Discovery Issues In Employment

Two Massachusetts judges and a Federal magistrate judge addressed the topic “Discovery Issues in Employment Cases” at a recent Boston Bar Association (“BBA”) program that was also moderated by and featured Schwartz Hannum PC attorneys.

The insight provided by Judge Mitchell H. Kaplan of the Massachusetts Superior Court (Business Litigation Session), Judge Paul D. Wilson of the Massachusetts Superior Court, and Magistrate Judge Robert B. Collings of the United States District Court for the District of Massachusetts contained the following practical tips.

• Thoroughly “meet and confer” with opposing counsel before filing a discovery motion. If it becomes apparent at the motion hearing that reasonable efforts to meet and confer have not been exhausted, the judge may deny the motion without prejudice pending further efforts by the parties to resolve the matter on their own.
• Do not overreach in discovery motions. Questionable discovery motions may result in a notice that sanctions against the losing party will be considered at the motion hearing if the matter is not reported as resolved by then.
• When a confidentiality agreement is appropriate, such as in a trade secrets case, be cautious about withholding discovery unless the opponent agrees to an “attorneys’ eyes only” provision. While judges will allow such provisions when agreed upon, judges generally will not impose them on unwilling parties.
• If seeking to enforce a noncompetition, nonsolicitation, or nondisclosure agreement against a former employee, consider asking the court for expedited discovery if evidence from the opposing party may be needed to support a motion for injunctive relief.
• Similarly, in cases alleging theft of trade secrets or confidential business information, consider having a computer forensics expert determine if an electronic “footprint” of such theft appears to exist. This can be highly persuasive, particularly when an injunction is being sought.
• If resolution of a single issue would resolve the entire case, consider requesting a Rule 16 litigation control conference. It might be possible to obtain an order requiring discovery to take place in stages, with discovery concerning the dispositive issue scheduled to take place first.

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The Firm represents employers in state and federal courts, before various administrative agencies, and in labor and employment arbitrations. Please feel free to contact us if you have any questions about the discovery process or other aspects of employment litigation.