The Assumption Is That, Like Columbus Personal Injury Lawyer And Medical Malpractice Lawyers, Plaintiff’s Lawyers Will Simply Advance The Expense Of Discovery

Before discussing the changes specifically, I would like to give you a generalbackground of the discovery situation that presently exists in my field in Columbus, Ohio, where Ipractice plaintiff's employment and civil rights law in a small (3 attorney) firm.

We represent employees who have been wrongfully terminated or discriminatedagainst in the workplace. A fairly typical case begins as follows: a woman who is five monthspregnant comes to our office and tells us that she has just been terminated from her position with acompany where she has worked as a salesperson for several years.

She tells us that all of her yearlyperformance reviews have been excellent, until she told her supervisor that she was pregnant. Shetells us that the company's corporate databases will contain objective information about her sales,showing that her sales are better than almost all of her peers.

Five days after her supervisor becameaware of her pregnancy, she received an unprecedented "supplemental" performance review ratingher as deficient in every performance category - categories in which she had received high scoresin her regular performance review just two months previously. One month later, she is terminatedfrom her position, allegedly for not correcting the deficiencies alleged in her "supplementalperformance review.

" Additionally, our client tells us that she engaged in e-mail exchanges with hersupervisor in which he could not explain the reasons for any of her alleged deficiencies.

Finally, ourclient believes that her supervisor was reprimanded in the past for discriminating against pregnantemployees.

The proposed rules suggest that plaintiffs, rather than employers, will usually bearthe costs of producing electronically stored information that is not reasonably accessible. Employerschoose how to store their data. Most plaintiffs in employment cases are at a stark economicdisadvantage: they have recently lost their jobs and are hunting for a comparable position under theburden of that termination on their resume.

The assumption is that, like personal injury and medical malpractice lawyers,plaintiff's lawyers will simply advance the expense of discovery. That assumption is misguided,largely because damages ceilings in federal civil rights statutes and the huge difference in size of juryawards between personal injury or medical malpractice cases and employment cases render plaintiff'semployment lawyers less able to advance those expenses