What to ask for

Why this matters

In a leave or retaliation case, the best proof is usually in the employer's own systems. Time records, messages, HR notes, and leave-vendor files show what the employer knew and when. You only get them if you ask for them clearly and early. A vague request gets a vague answer.

This chapter builds on Chapter 5 (discovery basics). Read that first if terms like "request for production" are new.

This is general information, not legal advice.

Know your limits first

Arbitration discovery is narrower than court discovery. The arbitrator manages it under AAA Rule R-21 or JAMS Rule 17, and court rules such as FRCP 26(b)(1) are models only, unless your agreement or an order adopts them. Chapter 5 explains the rules.

So ask for what you need, not everything. A short, targeted list is easier for an arbitrator to enforce.

The core request list

Timekeeping and payroll

Ask for the entries and also for who entered or changed each one, and when. Final approved time cannot show deletions or edits. Use these words.

• Audit logs or change history for my time entries.
• The user name, date, and time of every edit or deletion.
• Codes applied to each day, with change history.
• Payroll records for the same period, including bonus history.

Native files and metadata

Ask for spreadsheets and databases in native format, with the fields, filters, and sort settings that show how the data was pulled. A PDF print can hide a filter or leave out rows. If a printout plainly came from a spreadsheet or a database, a native file exists, so ask for it.

Spotting an incomplete export

Before you rely on a report, check that it covers the whole period you asked for and that nothing looks missing.

If a report is incomplete, do not claim a number the data cannot show. Say instead that the missing data is the problem, and ask for the full file.

Texts, chats, and personal devices

Important decisions are often discussed outside email. Ask for texts, chat messages, and instant messages for each decision-maker and key witness. Ask which devices and apps they use for work talk, including personal phones.

Also ask about preservation.

• Litigation hold notices and the date the employer began preserving.
• Retention schedules and auto-delete settings.
• When the employer first expected a dispute.

If messages are gone, this is the base for asking for an adverse inference. FRCP 37(e) is a useful model. It allows cure measures when electronic information that should have been kept is lost, and harsher steps only on a finding of intent to deprive. Your arbitrator's power comes from the rules and the orders (Chapter 9).

HR notes and investigation files

• HR case notes, internal chronologies, and check-in files about you.
• Emails among HR, managers, and leave staff about your leave, schedule, or complaints.
• Every document about how your internal complaint was handled. If none exist, ask the employer to confirm that in writing.

Leave-administrator and insurer files

Ask for the employer's communications with its leave administrator, insurer, or third-party vendor, and for the whole claim file. These records show what the employer knew and when. Consider a subpoena to the vendor (see AAA R-33(d) and 9 U.S.C. 7). If the vendor produces, ask for a sworn business-records certification, which helps show the file is complete and authentic.

Policies in effect at the time

Leave, accommodation, timekeeping, retention, anti-retaliation, and discipline policies, with version dates. Compare what the policy says with what happened.

Comparators and prior complaints

Ask how similar employees were treated, and for complaints against the same supervisor. This tests the stated reason for your treatment.

Communications about the decision

• Termination or discipline risk assessments, talking points, and approvals.
• Review notes and any approval chain, including who signed off and when.
• Every stated reason for the decision, from different dates and audiences. Reasons that shift over time suggest pretext.
• Names and titles of people with knowledge, with a short description of what each knows.
• Whether another role or team was considered before the decision.
• What the employer told the state unemployment agency. Compare it with the reasons given in the arbitration.

The facts behind their defenses

Employers often answer with a long list of one-line defenses (Chapter 2). Use interrogatories to ask for the facts, witnesses, and documents behind each one. Some defenses, such as failure to mitigate damages, are usually the employer's to prove. If an answer gives no facts, ask the arbitrator to set a date by which all defenses must be stated and supported.

How to word requests narrowly

1. Name the people, the date range, and the subject.
2. Say "documents sufficient to show" when you want a fact, not a flood.
3. Ask for the form you want (native, with metadata).
4. Keep each request to one topic.
5. Cut the list to the items that matter before you serve it.

Every request you serve invites the same request back, so ask only for what you are ready to give.

Pressing on "no responsive documents"

Count the answers. Then write to the employer.

• Ask for a yes or no on any request that has no clear answer.
• Use the "produce or confirm" device. Ask them to produce the documents or confirm in writing that none exist.
• Ask for a sworn description of the search (who searched, where, and when).
• Keep objection-only answers separate in your count. An objection is not an answer.
• Demand only what you asked for. A deficiency letter that asks for more than the original request is easy to reject.

If that fails, raise it in a short letter motion (Chapter 9), asking for specific relief.

Check your state

• Rules on third-party subpoenas in arbitration differ. Read 9 U.S.C. 7 and your state arbitration statute.
• Preservation duties and the remedy for lost messages vary by state.
• Who must prove each defense, such as mitigation, can depend on the law behind your claim.
• In New York, CPLR 3120 allows a notice to produce documents, with not less than twenty days to respond. It is a persuasive model in arbitration, not binding.
• State unemployment records may carry their own confidentiality rules. Check before you ask for them.

Copy-ready request checklist

• Time entries with audit log and change history
• Codes applied to each day, with change history
• Payroll, bonus, and benefits data for damages
• Native spreadsheets with filters and sort settings
• Texts, chats, and messages for each decision-maker
• Devices and apps used for work talk
• Litigation hold, retention schedule, auto-delete settings
• HR notes, chronologies, and check-in files
• Records of how my complaints were handled
• Leave-vendor and insurer claim file, with certification
• Policies in effect at the time, with dates
• Comparator treatment and prior complaints
• Decision documents and approvals
• Every stated reason, with dates
• Witness names, titles, and what each knows
• Alternative roles considered
• Employer's statements to the unemployment agency
• Facts, witnesses, and documents behind each defense

When your requests come back with objections, Chapter 16 explains each one and how to respond. For requests aimed at the employer's defenses, see Chapter 18.

Next: Chapter 7, Answering their discovery.

Sources

• AAA Employment Arbitration Rules (R-21 exchange of information)
• JAMS Employment Arbitration Rules (Rule 17 discovery)
• FRCP 26 (scope and privilege log, as a model)
• FRCP 34 (documents and electronic information, as a model)
• FRCP 37 (lost electronic information, as a model)
• 9 U.S.C. 7 (witnesses before arbitrators)