![]() if the second point be answered in the negative then the declarant a) will confirm whether the declarant gave any direction to destroy the documents and b) will confirm all of the steps taken so far to locate the documents and.whether the declarant takes the position that either took all of the documents with her upon her termination or destroyed them herself. ![]() whether the declarant denies that the documents mentioned in the bullet points above ever existed.The court required a response to four basic areas: The court resolved this dilemma by adopting what it called an “incremental approach.” The court gave each defendant 30 days to submit a specific affidavit or declaration that would lay the foundation for further inquiry. “That lead defense counsel has produced everything given to her, and that the material remains unaccounted for, can be true at the same time, and therein lies the difficulty.” Id. The court summarized the problem inherent in a motion to compel production of documents that the responding party insists do not exist. The defendants responded that they and the law firm took diligent steps to look for the requested documents and produced everything that they had in their possession. Alternatively, the plaintiff asked the court to require sworn affidavits from the defendants and the law firm explaining whether the notes had been destroyed and if so, how and why. The plaintiff sought to compel the handwritten notes and all documents on which the final investigative report was based. The plaintiff filed a motion to compel, insisting that the defendants had received multiple complaints and that the law firm took handwritten notes during interviews of the plaintiff and other employees. During discovery, the defendants produced, among other things, the plaintiff’s personnel file and documents that a law firm generated when retained to conduct an internal investigation of the plaintiff’s allegations. June 9, 2020), a bank teller sued her former employer under Title VII and state law for sexual harassment. One federal court recently wrestled with this scenario. What do you want me to do?” How will you answer? The judge hears opposing counsel and then shrugs, “Counsel, they say that they turned over everything. Skeptical, and certain there is more, you turn to your judge for assistance, through a status conference or a motion to compel. The client says that it turned over everything it had, and counsel claims she turned over everything that the client gave her. Counsel responds that she checked with her client. You reach out to opposing counsel about your suspicions. You’re sure there are more documents that should have been produced, but you can’t prove it. In a Title VII case, you might have a final report from management about your client’s allegations, but your client insists that she sat through interviews where investigators took handwritten notes. For example, you receive a copy of a product-testing report, but an email message in the discovery suggests that the report was not the first draft and that marketing pressured the engineers to make changes. Something that logically should be there is missing. You receive a trove of information, and as you sift through it, your Spidey-sense begins to tingle. Following a scheduling conference, you serve interrogatories and document requests. Maybe you are fighting a manufacturer of a defective product. Maybe your client has alleged discrimination and retaliation in violation of Title VII. You represent a plaintiff in a case against a corporation.
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