USING DISCOVERY FOR PERSUASION AND INTIMIDATION
Harvey A. Schwartz
Massachusetts Continuing Legal Education
Employment Law Update
Heaps of sample interrogatories and requests for production of documents in employment discrimination cases are available in handbooks and from bar groups. Putting aside, for the moment, the concept that the purpose of discovery is to uncover the strengths and weaknesses' of the other side's case, recent experience reveals tactics used by employers to intimidate plaintiffs ... and a few effective means for plaintiffs to fight back. This discussion will focus on heavy-handed tactics used by defense attorneys and how plaintiffs can confront these tactics. As a tit for tat, the discussion will also look at discovery techniques used by plaintiffs to raise the stakes for employers.
Plaintiff's psychological examination
Discrimination plaintiffs tend to be fragile and often have a psychiatric history predating the litigation. They are usually in therapy during the course of the lawsuit. Their psychological delicacy is often an explanation for their behavior, particularly in sexual harassment cases. For example, in one recent sexual harassment trial where the plaintiff had oral sex with her boss once a week for nearly two years, the plaintiff's explanation for why she assented to this conduct was that she was beaten by her husband and had been beaten by her father as a child and that her reaction to aggressive men was to submit to survive. In another sexual harassment case the plaintiff explained why she did not report her supervisor's sexually aggressive conduct by describing her traumatic childhood experiences in Cambodia, which created a fear of authority figures.
In both those cases the plaintiff's psychological history was relevant to explain her conduct. These plaintiffs offered evidence of their history personally and through experts. Clearly, in both cases the plaintiffs waived any privileges they might have had protecting communications with their psychotherapists.
Besides using the plaintiff's psychological condition as an explanation for her conduct, emotional distress is often the largest element of damages in discrimination cases, especially where the plaintiff was relatively low paid and lost income is not great. The plaintiff must offer dramatic evidence of emotional distress to receive a large compensatory damages award from a jury.
What these examples demonstrate is that despite all the discussions concerning whether the plaintiff has waived her psychotherapist privilege by claiming emotional distress damages, experience has shown this is more an academic question than a practical one. If the plaintiff claims her emotional fragility explains her conduct she will need an expert to explain that emotional fragility. If the plaintiff claims such severe emotional distress that she sought months or years of therapy, the jury will want to hear from that therapist. As a practical matter the plaintiff will want to offer evidence of her psychological condition before the discriminatory conduct and since. This evidence will come from the plaintiff, from her treating therapist and, possibly, from a hired gun.
Much energy -- meaning time and money -- can be spent battling over disclosure of plaintiff's psychological records, over deposition questions based on those psychological records and over the defendant's Rule 35 examination of the plaintiff. Experience has shown that most of these battles are fruitless, that a plaintiff claiming her emotional fragility explains her conduct and that she has suffered traumatic emotional harm will have to virtually lay herself bare psychologically. She will have to produce all of her psychological records, she will have to make her expert psychological witnesses available for deposition and she will have to answer deposition questions about her psychological history, condition and care.
This reality should be addressed in the first extensive meeting between counsel and a potential new client. Promises that conversations with psychotherapists are privileged or that nothing about prior psychological care will be disclosed during the lawsuit should never be made and can rarely be kept.
There are, however, three areas concerning the plaintiff's psychological care that should be addressed.
Federal rape shield law
In the ongoing and fluid debate among plaintiffs' attorney about whether it is better to be in state court or federal court in any particular case, consideration should be given in sexual harassment cases to the federal rape shield statute, incorporated in Federal Rules of Evidence, Rule 412.
Where the employer raises a consent defense to a sexual harassment charge that defense is likely to include allegations that the plaintiff dresses provocatively, has been flirtatious with other male employees and, perhaps, has been involved in sexual relationships with other employees. In one case whether the plaintiff alleged she was forced to engage in oral sex with her boss she was asked at her deposition to describe whether she regularly had oral sex with her husband and was asked to name all the men she had oral sex with prior to her husband. he defendant alleged this was relevant because the plaintiff testified how repulsive she found the conduct her boss forced her to engage in.
Much of this evidence would be admitted in state court. Federal Rule of Evidence 412, however, makes all such evidence "generally inadmissible." The rule states:
(a) Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim's sexual predisposition.
The commentary to this rule states that it is intended to "apply in a Title VII action in which the plaintiff has alleged sexual harassment." The commentary reads the rule broadly, saying that it bars evidence "relating to the alleged victim's mode of dress, speech, or life-style." The commentary goes so far as to say the rule bars evidence of the victim's thoughts or fantasies, use of contraceptives, birth of illegitimate child and evidence of prior venereal disease.
There is no Massachusetts equivalent of this civil rape shield. The only protection offered in Massachusetts is for criminal cases. G.L. c. 233, 21B.
Where a sexual harassment plaintiff has exposure to impeachment by evidence of her sexual history -- or simply where there is concern that the defendant will be able to tarnish the plaintiff's image before the jury -- Rule 412 should weigh heavily in favor of filing the complaint in federal court rather than state court. Of course, every federal complaint should have a c. 151B count in addition to a Title VII count to take advantage of the Blare v. Husky Injection Molding Systems, Inc., 419 Mass. 437 (1995) decision and also to qualify for prejudgment interest.
Rule 35 mental examinations
Particularly where the plaintiff intends to call either her treating psychotherapist or a forensic psychotherapist, the plaintiff will have little chance of preventing a Rule 35 mental examination by the defendant. A few steps can be taken to take some of the danger out of these examinations. Rather than resisting the examination entirely, plaintiff should file a motion for a protective order seeking to permit counsel to attend the examination and permitting either a stenographer or tape recorder to be present.
Rule 35 mental examinations usually come late in the discovery process and can turn into mini-depositions, with the psychiatrist/psychologist fully prepared with deposition transcripts, interrogatory answers and documents produced by the plaintiff. When investigating trauma it is routine to question the plaintiff about the events that supposedly caused the trauma. Without counsel present the plaintiff can be left vulnerable and confused when answering substantive factual questions, providing a fruitful field for defendants to obtain impeaching statements from an unrepresented plaintiff.
A Rule 35 psychiatric examination is inherently adversarial in nature. The doctor performing the examination is engaged by the defendants to evaluate and report on the plaintiff's condition. "[M]ore than any other mode of discovery, an examination [under Mass. R. Civ. P. 35] impinges directly upon the privacy and personality of the party being examined." R.R.K. v. S.G.P., 400 Mass. 12, 19 (1987) (Liacos, J. concurring), quoting J.W. Smith & H.B. Zobel, Rules Practice 35.3, at 385 (1975). Whenever an examination of a party by an adversary's doctor takes place, there is the possibility that improper questions may be asked. Tietjen v. Dept. of Labor and Industries, 534 P.2d. 151, 154 (Washington,1975). The defendants' expert doctor is engaged, not to treat the plaintiff's ills, but solely to advance the interests of the defendant and cannot be considered a neutral in the case. Zabkowicz v. West Bend Co., 585 F. Supp. 635, 636 (E.D. Wis. 1984). (Ex. B). As was noted by the Ohio Court of Appeals, "[a] true doctor and patient relationship does not exist as the privilege is not between doctor and patient, but between the defendant and the doctor. State ex. rel. Straton v. Common Pleas Court, 211 N.E.2d 63, 65 (Ohio 1964). (Ex. C). As was noted by the court in Milam v. Mitchell, 274 N.Y.S.2d. 326, 328 (New York 1966):
it should be kept in mind that the plaintiff is being compelled by the Court to disclose at the insistence of his adversary certain information that may affect his rights in the lawsuit and the courts have always permitted the party the protection of having the advice of counsel during the examination.
The examination by the defendant's expert is to advance the interests of the defendant and therefore is not sufficiently impartial to justify excluding plaintiff's counsel.
There is no Massachusetts appellate case law concerning the presence of counsel at Rule 35 mental examinations. Cases from other jurisdictions are split on the issue, with the most pro-plaintiff decisions from New York state courts. Representative cases include Nomina v. Eggman, 188 N.E.2d 440, 444 (Ohio 1962); Reardon v. Port Authority of N.Y. & N.J., 503 N.Y.S.2d. 233, 234 (1986), and Jakubowski v. Lengen, 450 N.Y.S.2d 612, 614 (1982)("The presence of plaintiff's attorney at a physical or mental examination may well be as important as his presence at an oral deposition.") It should be noted that Judge Roseman recently ordered that plaintiff's counsel could attend a mental examination and that defendant's counsel had to tape record the examination and provide a copy of the tape to plaintiff. Kelly v. Framingham State College, Middlesex Superior Court No. 94-02183 (June 21, 1995).
Another issue that arise in Rule 35 mental examinations is whether the examination can include standard psychological testing, such as the Thematic Apperception Test (TAT) and the Minnesota Multiphasic Personality Inventory (MMPI). This test includes questions such as "I sometimes tease animals" and "I believe I am being plotted against," which are answered "true" or "false."
There is no Massachusetts case law on whether a plaintiff can be compelled to answer such questions. Cases from other jurisdictions are split. See, Usher v. Lakewood Engineering and Manufacturing, No. 93-C-3279 (E.D. Ill., Nov. 10, 1994)(granting protective order concerning use of standardized tests). Contra., see Massey v. Manitowoc Company, Inc., 101 F.R.D. 304, 306 (E.D. Pa. 1983). Plaintiffs should strongly resist submitting to this kind of testing. There is no telling how individual answers could be used at trial.
Deposition of treating psychotherapist
The defendant will often attempt to depose the plaintiff's treating psychotherapist. In most employment discrimination cases the plaintiff will claim emotional distress damages as the largest element of her damages. She will usually call either her treating psychotherapist or a forensic psychotherapist to testify. While a live witness is preferred over a videotaped witness, practicality may compel the plaintiff to preserve her expert's testimony on videotape. Mass. R. Civ. P., R. 30A(m), added in 1989, establishes the procedures for a party to take a videotaped deposition of her own expert witness.
When the defendant will be calling its own expert to counter the testimony of the plaintiff's expert a videotaped deposition can be especially dangerous. The defendant's expert can study the plaintiff's expert's testimony and carefully tailor his trial testimony to refute the recorded testimony of the plaintiff's witness.
The more difficult problem is when the defendant seeks to depose the plaintiff's expert. When the witness is a forensic expert, not a treating therapist, there a few grounds to oppose such a motion, assuming the defendant will compensate the witness. When the witness is a treating psychotherapist, however, the plaintiff should seek a protective order under Mass. R. Civ. P., R. 26(b)(4)(A) and 26(c).
The defendant has no right to depose the plaintiff's treating therapist. Once the plaintiff has answered expert witness interrogatories, any further discovery concerning her expert is discretionary under Rule 26(b)(4)(A). There is little chance a protective order preventing the deposition of a treating psychotherapist would result in reversal. See, Symmons v. O'Keeffe, 419 Mass. 288, 302 (1995). The defendant would have to show that the denial constituted an abuse of discretion which resulted in prejudicial error. Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 799 (1987). Bishop v. Klein, 380 Mass. 285, 288 (1980). The conduct and scope of discovery is within the sound discretion of the judge. See, e.g., Bishop v. Klein, 380 Mass. 285, 288 (1980); Eagan v. Marr Scaffolding Co., 14 Mass. App. Ct. 1036 (1982); Schneider v. Lockheed Aircraft Corp., 658 F.2d 835, 848 n.8 (D.C. Cir. 1981); 8 C.A. Wright & A.R. Miller, Federal Practice and Procedure 2006, 2215, 2234 (1970 and Supp. 1986).
The strongest ground for opposing a deposition of a treating psychotherapist is that the deposition would irrevocably damage the plaintiff's treatment and care by the therapist. A deposition -- or even worse, a series of depositions -- in which the therapist is compelled to say everything the plaintiff has told her would so breach the patient-therapist relationship as to destroy any chance of future therapy with that person. Of course, this argument loses much of its gloss if the plaintiff is well on the road to recovery or is no longer in intensive treatment.
OTHER DISCOVERY ISSUES
Tape recordings
It is not uncommon for a plaintiff to open her pocketbook and dump a handful of tape cassettes on the conference room table, saying, "I've got him cold and he doesn't have a clue I recorded him." What to do?
It is a crime in Massachusetts to record a conversation if a party to the conversation is unaware it is being recorded. G. L. c. 272 § 99. The crime carries a potential penalty of five years in state prison and a $10,000 fine. § 99(C)(1). It is a crime to "disclose to any person" the contents of an illegally recorded conversation, although the penalty for disclosure is only two years imprisonment and a $5,000 fine. More practically in civil cases, the statute creates a cause of action by the person who was secretly recorded in which he can recover liquidated damages of $100 for each day he was illegally recorded, or $1,000, whichever is higher, punitive damages and attorneys fees. § 99(Q).
The recordings most likely would not be admissible. The statute calls for suppression of illegally recorded conversations in criminal trials, making no mention of civil trials. § 99(P). No case could be found, however, where any court relied on this distinction and admitted illegal recordings in a civil trial. In fact, since the recordings would not be admissible, some courts have held that they are not discoverable. Smith v. Hub Folding Box Company, U.S. District Court for Massachusetts, C.A. No. 91-12287-T, Memorandum and Order, Bowler, Mag. (May 12, 1992). The recordings could not be used to impeach a witness. Commonwealth v. Fini, 403 Mass. 567 (1988).
On the other hand, a witness to the illegally recorded conversation could still testify, from memory, about the conversation. Commonwealth v. Jarabek, 384 Mass. 293, 299 (1981); Commonwealth v. Blood, 400 Mass. 61, 77-78 (1987). The plaintiff will be permitted to give her version of the conversation and the defendant will give his version.
Those of us who hold to the delusion that a trial is a search for truth may be struck by the absurdity of two people giving different versions of a single conversation, with the jury having to weigh their credibility, when a recording of the actual conversation exists and could prove who is telling the truth. The exclusionary rule that keeps the tape out of evidence is designed to protect individuals against intrusive actions by the government. Future cases -- with brave plaintiffs willing to risk criminal charges against them -- could challenge the strict application of this rule in civil cases, particularly where the plaintiff acted to protect herself against illegal sexual harassment.
So, what is an attorney to do when the tapes tumble onto the table ... or when a request for production comes in that, arguably, could include the tapes ... or when the plaintiff is asked at her deposition whether she recorded any conversations? The safest course is to assert the Fifth Amendment privilege. The assertion of the privilege would prevent a criminal prosecution and, although admissible in a civil trial for purposes of creating an adverse inference, would not be enough by itself to support a verdict.
Faced with an assertion of the privilege the defendant can be expected to move for dismissal, self righteously claiming that the recording would be completely exculpatory and should be produced. The response to that would be to call the defendant's bluff and offer to produce the tape if the defendant releases any claim he might have under c. 272. No cases could be found where a plaintiff's case was dismissed for refusing to turn over illegal tape recordings or for asserting a Fifth Amendment privilege. Some sanctions could be expected, ranging from requiring the assertion of the privilege before the jury and instructing the jury on the inference that could be drawn to barring the plaintiff from testifying about the conversation. Given the strong language favoring testimony by a witness to the conversation in Commonwealth v. Blood, 400 at 77-78, such a severe sanction could be reversible error.As to the more fundamental question -- does the attorney get out his tape recorder and play the tapes at the first interview with the client -- that depends on the attorney's individual conscience. If the client says the tapes nail the lid on the defendant's coffin, the temptation to listen would be overwhelming.
Discovery of defendants' financial information
Defendants hate having to reveal financial information to plaintiffs, especially when the defendant is a closely held corporation or family business. Individual defendants are also subject to financial disclosure. The rationale for requiring financial disclosure is that punitive damages are available under c. 151B § 9 and the jury should be instructed to base its punitive damages award, in part, on the financial condition of the defendant. The award, in the words of one court, should be large enough "to sting." Keenan v. City of Philadelphia, 55 FEP 932, 944 (E.D. Pa. 1991).
The Equal Employment Opportunity Commission's guidelines on punitive and compensatory damages, EEOC Policy Statement No. 915.002, July 15, 1992, EEOC Compliance Manual 2059-13, CCH, Inc., establish the factors to be used to determine an amount of punitive damages that will sting:
1. The revenues and liabilities of the business.
2. The fair market value of the defendant's assets.
3. The amount of liquid assets on hand, which includes amounts that they can reasonably borrow.
4. The defendant's propensity to generate income in the future -- projected earnings.
5. The resale value of the business. This is particularly useful where the business has a unique spot in the market. For instance, larger companies may be seeking to buy the business.
6. Consider whether the defendant is affiliated with, or a subsidiary of, a larger entity that could provide additional financial resources to the defendant.
It is useful to append these guidelines to the request for production of documents seeking financial information.
A defendant may seek to bifurcate the compensatory damages portion of the trial from the punitive damages portion. This has generally met with little success in Massachusetts. Experience has shown, however, that in the federal court in Boston Judge Lasker, visiting from New York, favors this approach.
Records in computer format
As companies move toward paper less offices it becomes increasingly more negligent to limit yourself to paper discovery. Something more than the routine boilerplate definition of "documents" as including computer records is needed. There should be specific document requests for E-mail messages by and between various named persons.
Every company larger than a Mom and Pop corner store keeps its personnel and payroll records on a computer. In disparate impact cases, particularly in age discrimination cases where a statistician will testify, obtaining hiring, firing and salary records by employee, by age can save hundreds of hours of sorting and compiling paper records. Having this information available in computer format for your expert will also save thousands of dollars in expert fees. Your document request for this information should insist that it be produced on disk.
Telephone records
Advances in telephone equipment make substantially more telephone records available than in previous years. Rather than -- or in addition to -- obtaining the defendant's telephone records from the telephone company, you should request these records from the company. All large telephone systems are computer based, most provide a record of every call, even local calls. Some even record internal calls. Ask for these records.
Other discrimination complaints
Defendants routinely refuse to produce information concerning other discrimination complaint made against them. Besides moving to compel production of this information, the plaintiff should obtain information from the Massachusetts Commission Against Discrimination about other complaints. Experience has shown the MCAD to be inconsistent on what it will provide and how much it will provide. The MCAD has no regulations on disclosure of documents. It may be necessary to file a Freedom of Information request with the commission.
Obtaining access to the MCAD's files, however, can be fruitful. It will provide you with the names of other attorneys who have brought complaints against the company, which will lead to other former employees who felt sufficiently wronged to file a discrimination claim.
There is little case law on whether defendants must disclose other discrimination complaints against them. A recent Superior Court decision held that since the plaintiff was unaware of other complaints made against the company she could not admit such evidence to prove the existence of a hostile work environment, thus the company did not have to disclose other discrimination complaints. Doe v. Bechtel Corporation, (Lawyers Weekly No. 12-236-95)Suffolk Superior Court C.A. No. 94-5886G (Doerfer, J.).
Requests for admissions
The last step in discovery should be a request for admissions. Think of this more as trial preparation than as discovery. Use it to narrow down the issues and to establish the authenticity of documents and copies of documents to simplify admission at trial.
Depose the boss
Save your final deposition for the defendant's decision-maker on settlement. Use this deposition to present your strongest case with questions like, "When did you first learn that employee A and employee B tell two different stories of these events?" Show this person your best case, your strongest evidence. Even though we call ourselves trial lawyers, most cases settle. This will be your one chance, short of face to face mediation, to speak directly to the other side's decision-maker and present your case for settlement.