Many HR professionals may relate to the “oh no, what now?” moment when they first learn an employment-related lawsuit has been filed. Although employers would prefer to avoid litigation entirely, it’s important for HR departments to have systems in place to assist with prelitigation and discovery needs.
The litigation process can be separated into four basic stages—pre-suit investigation and pleadings stage, discovery (exchange of evidence), trial or settlement, and posttrial enforcement or appeal. This article focuses on the first two steps. Keep this article handy as a quick reference guide when a lawsuit is filed or as a framework for your organization’s own litigation check list.
Step 1: Pleadings Stage
Litigation begins with the pleadings, which are formal documents stating each of the party’s basic propositions. In an employment suit, the employee or former employee would start by filing a complaint, informing the employer what the dispute is about and what damages they’re seeking. Filing a complaint then triggers an obligation on the part of the employer to respond with its legal “answer” or “motion to dismiss.”
If your organization is served with a summons and a complaint, your first steps should be to:
- Contact your employment practices liability insurance (EPLI) carrier and put them on notice of the claim;
- Contact your organization’s legal counsel;
- Determine the deadline for responsive pleadings with counsel; and
- Determine if there’s an applicable arbitration agreement.
During the pleadings stage, HR should work with the organization’s inside or outside legal team to obtain the necessary information for admitting or denying each of the allegations. You must respond within a specified time (e.g., 20 days) or face a potential default judgment.
At this time, HR should also pull documents relevant to the employee, such as their personnel file, and implement litigation holds (which is a fancy term for preserving evidence). Litigation hold letters should be sent to the employee’s counsel and relevant personnel to maintain emails and documents that may need to be provided during the discovery process. HR should further work with IT to ensure any automatic email-purge policies are suspended for email accounts of relevant parties. Parties have a duty to preserve relevant evidence.
Step 2: Discovery
Soon after the parties have filed their pleadings, the court will issue a scheduling order with a list of deadlines including dates for discovery, depositions, dispositive motions, and trial dates.
Discovery is the formal process of exchanging information between the parties about the witnesses and evidence they will present at trial. When discovery requests are served to an employer, HR plays an integral role in gathering the responsive information. Common documents in employment cases include:
- Meeting minutes;
- The employee’s personnel file;
- Grievance files;
- Investigation files;
- The employee’s unemployment file;
- Documents from related agency proceedings; and
- Email communications.
When retrieving email communications, legal counsel for the parties can agree on search terms based on the topics at-issue in the litigation, which will limit the number of emails you need to gather. HR may also be involved in reviewing and certifying the organization’s responses to an employee’s discovery requests.
Typically, a suing employee will request to conduct a corporate representative deposition. The corporate representative is tasked with speaking on behalf of the organization and presenting its collective knowledge.
HR professionals may be selected as the corporate representative because of their institutional knowledge and familiarity with policies and procedures. Legal counsel will work with the selected representatives to ensure they are informed on all of the noticed deposition topics.
HR professionals may be involved in all aspects of litigation including settlement or trial. This article only highlights the big tasks in the pleading and discovery phases that involve HR departments. Afterall, having procedures in place for prelitigation will ensure the least amount of disruption to an organization and its regularly scheduled business. HR professionals should work closely with legal counsel to assist in maintaining prelitigation policies.
Ashley Faulkner is an attorney with Steptoe & Johnson PLLC in Morgantown, West Virginia. You can reach her at email@example.com.