Answering their discovery

Why this matters

Your answers to the other side's requests are statements you will live with for the rest of the case. A careless line can be turned into an accusation that you lied. A generous answer can open the door to records you wanted to keep private. Slow, plain, accurate answers protect you.

This is general information, not legal advice.

How the rules fit

Discovery in arbitration is run by the arbitrator (Chapter 5). Court rules such as FRCP 26, 33, and 34 are models, not binding, unless your agreement or the arbitrator adopts them. Read the scheduling order first. It may set its own format, deadlines, and limits.

Write objections that say something

Boilerplate objections ("overbroad, unduly burdensome, vague") get ignored. They can also make an arbitrator doubt the rest of your answer. A good objection is short and specific.

1. Quote the request, or number it.
2. State the objection and the one fact behind it. For example, a request for "all communications with anyone about your health" has no limit in time or subject. Say that.
3. Say what you will produce or answer, in plain words.
4. Stop.

Keep general objections to a short list with defined terms, then refer to them by number. Use the other side's own format and length as your guide. Short responses are easier to defend.

Answer only what is asked

Read the request as written, not as you fear it might be read. Do not restate it, rebut it, or explain your side. Volunteered explanations plant theories and point the other side to sensitive documents.

Two related habits help.

• Check your description of what you served before you repeat it. Look at your production index, not the folder on your computer. Overstating a production can alert the other side to items you never produced.
• Do not preview your hearing plan. Name witnesses and exhibits only as the order requires.

Say what the rules require about withholding, and no more

Many rules now require each objection to say whether anything is being withheld because of it. The federal model is FRCP 34(b)(2)(C): "An objection must state whether any responsive materials are being withheld on the basis of that objection." New York's uniform rule for its Supreme and County Courts, 22 NYCRR 202.20-c(b), asks the same thing. If your arbitrator adopts either rule, or your order says something similar, follow it. A plain line such as "Documents are being withheld on the basis of Objection 2" is enough. Chapter 16 explains why ignoring this rule backfires.

What you should skip is commentary. Do not explain why you are holding something back, describe what the material shows, or argue about it in the response. That invites a fight over the material you want to protect.

If you withhold privileged material, expect to give a log. Under FRCP 26(b)(5)(A), a party withholding privileged material must "describe the nature of the documents, communications, or tangible things not produced or disclosed" enough for the other side to assess the claim. New York's CPLR 3122(b) asks for the legal ground for each withheld document and its type, general subject matter, and date. A good log lists date, author, recipient, and a neutral description, without revealing the privileged content. Whether a log is due, and when, depends on your forum and your order.

Never certify a negative you cannot stand behind

Do not write "no responsive documents exist" or "a diligent search found nothing" unless you are certain. One later-found text can turn a careless line into a charge of a false answer. Safer wording describes what you did, such as "After a reasonable search, Claimant is producing the documents located." Then do the search, and write down where you looked.

Never give a sworn answer you know is false, whoever it would protect. If you cannot answer truthfully, object, or answer truthfully. A false sworn answer can end a case.

Be careful with absolute statements about yourself too. Words like "none" and "never" are easy to disprove with one document, such as an old message. Tell anyone helping you about awkward facts before you answer anything under oath. Chapter 10 covers the topics employers most often probe.

Questions about who you talked to

You may have to identify people you discussed the case with. Ask what is required, and object to anything overbroad.

Correcting or adding to an answer

If you learn that an answer was incomplete or wrong, you have to fix it. The federal model, FRCP 26(e)(1)(A), requires a party to supplement or correct a response "in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect." The duty does not apply if the corrected information has already been made known to the other side during discovery or in writing. Your order may set its own rule or deadline.

Treat any correction as carefully as the original. The employer will compare it with your earlier answer and your testimony. Make it accurate, keep it to the point that needed fixing, and keep a copy of how and when you sent it.

Protect medical and therapy records

Ask yourself one question first. Are you claiming a diagnosed condition, or only the ordinary distress that follows a bad event at work? Your answer decides how far the other side can reach.

The privilege

The federal courts recognize a psychotherapist-patient privilege. In Jaffee v. Redmond, 518 U.S. 1, 15 (1996), the Supreme Court held that "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence." It also reached licensed social workers (at 15-16).

New York is a state example, spread across three statutes.

• CPLR 4504(a) covers physicians (so psychiatrists) and nurses.
• CPLR 4507 puts communications with psychologists "on the same basis as those provided by law between attorney and client." It does not name psychiatrists. Those fall under 4504.
• CPLR 4508 covers licensed master and clinical social workers. It has exceptions, including disclosure the client authorizes.

Garden-variety versus a diagnosis

You can protect the privilege by keeping your emotional distress claim narrow. This is often called "garden-variety." In re Sims, 534 F.3d 117, 141 (2d Cir. 2008), rejected the argument that any claim of garden-variety injury waives the psychotherapist-patient privilege. Cite it narrowly. It was a mandamus petition in a physical-assault case. It does not draw the line for employment claims.

Courts differ. One federal trial court found waiver where an injured employee claimed lost wages, lost employment, and loss of enjoyment of life. Check your circuit and your state before you rely on any one decision.

Practical rules.

• Do not rely on a diagnosis or on treatment as proof of harm.
• Do not name a treating provider as a witness or declarant.
• Describe your feelings in your own words and say nothing about treatment you are not ready to discuss.
• Object on privilege and relevance. Do not volunteer whether treatment occurred unless you have decided to. If the arbitrator rules against you or asks directly, answer truthfully.
• Hold your choice in every filing, answer, and piece of testimony. Inconsistency invites a motion to compel.
• Never sign a blanket medical authorization without reading its scope.

Produce clean, true documents

1. Redact before you produce. Search every page for Social Security numbers, account numbers, birth dates, children's names, and home addresses. Check headers and footers of agency forms.
2. Produce originals or faithful exports. Never retype, summarize, or regenerate an email or message and call it the document. If you must make a copy, say it is a copy. After you assemble the set, compare each item to its source, both before and after service.
3. Produce raw recordings only. Use the unedited original file. Do not produce cleaned, trimmed, or enhanced versions while a raw original exists. Edits invite attacks on authenticity.
4. Quote from the raw transcript. Machine transcripts contain errors, and cleaned versions smooth speech. If a witness asks to see the exhibit and it does not match your quote, you are impeached with your own paper.
5. Label any highlighting or notes you add. Do not alter the original.
6. Keep an exact index of what you produced, with a number, date, description, and source file for each item. Use it whenever you describe your production.
7. Keep mediation material out of your answers. Object on confidentiality grounds and do not describe what was said.

Records from phone carriers, banks, and portals can take weeks, and downloads expire. Request them early and store copies in two places.

Checklist

• Scheduling order read for format, deadlines, and limits.
• Each objection specific, with the one fact behind it.
• Answers limited to what was asked.
• No sworn "none" or "never" you cannot stand behind.
• Damages choice (garden-variety or diagnosis) made and held.
• Every page checked for personal identifiers before production.
• Originals and raw recordings only, checked against their sources.
• Production index updated.

Check your state

• Privilege log timing and form vary by forum and by order.
• Psychotherapist privilege differs by state. New York's three-statute structure is only one model.
• Redaction and privacy rules for produced and filed material differ.
• Look up the garden-variety rule in your circuit and state before choosing your damages theory.

Chapter 16 explains each common objection, including the ones you might use, and how arbitrators tend to treat them.

Next: Chapter 8, Depositions.

Sources

• AAA Employment Arbitration Rules (R-21 exchange of information, R-33 evidence and privilege)
• JAMS Employment Arbitration Rules (Rule 17 discovery, Rule 22 evidence)
• FRCP 26 (scope, privilege log, as a model)
• FRCP 33 (interrogatories, as a model)
• FRCP 34 (documents and electronic information, as a model)
• New York CPLR 3122 (objections and privilege log)
• New York 22 NYCRR Part 202 (202.20-c, document responses)
• New York statutes (CPLR 4504, 4507, 4508)