Discrimination lawsuits, like many lawsuits, rely heavily on discovery.  Discovery is the process by which we seek the other sides’ evidence.  In employment cases, the discovery process takes on added importance because the employer has most of the key evidence.  The employer, for example, posses personnel records regarding other employee who were terminated for similar offenses, regarding personnel policies, and so on.  So, adequate discovery is critical to any employment lawsuit.  

A Houston lawyer failed to cooperate regarding discovery recently and eventually, his client’s case was dismissed.  See Worrell v. Houston Can! Academy, No. 10-20102 (5th Cir. 5/5/2011).  See opinion.  The plaintiff’s lawyer in a discrimination case completely failed to provide initial disclosures.  Melvin Houston also failed to respond to written discovery requests.  The lawyer then failed to respond to the motion to compel filed by the defense lawyer.  

When the lawyer did finally respond to the discovery, he did not respond adequately.  For example, in listing names of potential witnesses, we must provide address and phone numbers, if we have them.  But, Mr. Houston simply listed the address and the phone number of the defense lawyer for each witness, even though most of the witnesses no longer worked for the employer.  Thus, he included the defense lawyer’s phone and address for each witness – apparently because Mr. Houston presumed the defense lawyer controlled each witness.  But, these witnesses no longer worked for the employer.  

Mr. Houston also failed to provide a calculation for the damages he was claiming.  

The defense charged the plaintiff with numerous other omissions, but those are the omissions cited by the district court and later relied on by the Fifth Circuit.  The appellate court would note dryly on appeal that the witnesses did not reside at the defense lawyer’s office. 

The plaintiff lawyer defended his tardiness in responding at all on the grounds that Hurricane Ike had cut off his power for some period of time.  But, the defense lawyer produced an email he received from Mr. Houston fore that time period – suggesting he had power much sooner than he claimed.  

The court provided ample opportunity for the plaintiff to get her act together.  The court stayed the proceedings at one point for 60 days after a show cause hearing.  The court required the plaintiff to amend her responses within the 60 days.  When the plaintiff still did not comply with the Court’s orders, it dismissed the case.  Dismissal is the "death penalty" of sanctions.  The Court noted the response to Interrogatories still lacked contact information for the listed witnesses and lacked calculation for her claimed damages.  The court also noted the Plaintiff’s lack of a response regarding the plaintiff’s emotional suffering and Plaintiff’s failure to state whether her leaving her other employers was voluntary or not.  And, her amended response to the request for production was actually submitted one day after the 60 day deadline.  The plaintiff also failed to explain why she waited one month to ask that the case be re-opened.  

And, of course, even before getting to the "death penalty," the Court had ordered the plaintiff to pay the defendant’s expenses in filing motions to compel a couple of times.  So, yes, the Court used a progressive system, giving the plaintiff opportunity to correct her deficiencies.  Ultimately, the plaintiff simply did not respond.

As I have explained to clients many times, the real battle is often about discovery.  It is very important to craft discovery responses as part of an overall strategy.  It is not enough to simply respond to discovery.  One must respond in a way that displays confidence in your case. and in a way that displays no weakness.  The lawyer must work very closely with the client to ensure the very best responses are made.  The lawyer cannot win without the client and the client certainly needs the lawyer.    

Many of the above errors sound like they are lawyer driven, but we will never know the full story.  No one, no one should ever have their case dismissed due to inadequate discovery responses.