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Employment Discrimination Depositions

ISBN: 978-1-57823-094-5
Author: Anthony J. Oncidi
Page Count: 610
Last Updated: November 2015
Media Desc: 1 Looseleaf Volume. Forms. Index. Updated annually or when needed.
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Unlike other forms of litigation, employment discrimination cases are usually not document intensive. Depositions are the key method of obtaining information that can either make or break a case. This work is designed to be used by both plaintiffs' and defendants' counsel. Employment Discrimination Depositions explains the deposition process step by step, beginning with the decision of whether a person should be deposed and to the final step of actually questioning the witness. This work focuses on particular aspects of a deposition that are important for an employment discrimination lawsuit or that should be approached differently when employment discrimination is alleged in the complaint.

Effective deposition strategies and techniques are provided, as well as form outlines and questions that can be incorporated into the facts of a specific case. This work addresses key issues that should be explored during any deposition in an employment discrimination case. In addition, specific categories of discrimination claims, such as sexual harassment and race discrimination, which are analyzed in depth. Detailed questions are provided for both the plaintiffs' and the defendants' counsel that can be tailored to the facts of a specific discrimination case. The focus will be on the federal statutes that are applicable to employment discrimination cases, Title VII of the federal Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Family and Medical Leave Act. The materials provided also can be applied to cases which arise under state statutes. In addition, the strategies and analysis described herein will be applicable to claims filed with state or federal administrative agencies.

This book is a necessary and invaluable addition to an employment lawyer office library.

Table of Contents


3 Who Should Be Deposed?

[1]The Deposition of the Plaintiff by the Defendant
[2]The Deposition of the Defendant(s) by the Plaintiff
    [a]The Plaintiff's Supervisor
    [b]Key Decision Maker of Employer
    [c]Human Resources Personnel
    [d]Former Co-Workers of the Plaintiff
    [e]Person Designated to Testify on Behalf of Corporation
    [f]Employer's Officers or Executives
[3]The Deposition of Third Parties
    [a]Former Employees
    [b]Family Members of Plaintiff
    [c]Treating Physician as a Percipient Witness
    [d]Custodians of Business Records
    [e]Out-of-State Witnesses
    [f ]Deposition of EEOC Investigators
[4]The Deposition of an Expert Witness

4 Scheduling the Deposition
[1]When Should the Deposition Be Scheduled?
[2]The Sequence of the Depositions
[3]Where Should the Deposition Take Place?
[4]Should the Client Be Present?

6 Preparing to Take a Deposition
[1]Conduct Extensive Discovery before the Deposition
    [a]Mandatory Disclosure Pursuant to Rule 26
    [b]Document Demands
        [i]Sample Document Demand Propounded by Plaintiff to Defendant
        [i]Sample Interrogatories Propounded by Plaintiff to Defendant
        [ii]Sample Interrogatories Propounded by Defendant to Plaintiff
    [d]Requests for Admissions
    [e]Subpoena of Third-Party Records
[2]Electronic Discovery
        [i]The Amendments to the Federal Rules of Civil Procedure
        [ii]Accessible versus Non-accessible Sources
        [iii]Form of Production
        [v]Sanctions and the Safe Harbor Provision
    [b]The Preservation Obligation
         [i]Implementing a Litigation Hold
    [c]Retention Policies
         [i]Other Electronic Data Policy Tips
    [d]Rule 30(b)(6) Deposition regarding ESI
[3]Is a Protective Order Needed?
[4]The Defendant Should Conduct a Comprehensive Internal Investigation
[5]Review the Case File and Documents
[6]Understanding the Legal Issues Involved-- Research Is Key
[7]Determine Objectives of the Deposition
[8]Consult with Expert if Necessary
[9]Prepare Deposition Outline
[10]Prepare Exhibits in Advance
Sample Stipulated Protective Order
Exhibit A--Affidavit of Compliance with Protective Order

7 General Deposition Techniques
[1]Open-Ended and Leading Questions
[2]Demeanor of Attorney
[3]Scattering the Issues
[4]"Close Out" Each Topic
[5]Prior Inconsistent Statements
[6]How to Handle Deponents Who Cannot Recall Information

8 Retaining Control of the Deposition
[1]Handling Hostile Opposing Counsel
[2]Instructions Not to Answer

9 Videotaping Depositions
[1]Advantages of Videotaping
[2]Any Party Can Videotape a Deposition
[3]Cost Should Be Considered When Deciding Whether to Videotape
[4]Other Reasons Why a Party Should Not Videotape

10 Preparing Yourself to Defend a Deposition
[1]Defining Your Objectives
[2]List of Common Objections
[3]Cross-Examining Your Own Witness
[4]Privilege Issues and Instructions Not to Answer

12 Beginning the Deposition
[1]Sample Admonitions
[2]Sample Questions to Elicit Background Information

13 Common Topics Relevant to Discrimination Cases
[1]--The Plaintiff's Application and Resume, and the Interview
and Hiring Process
FORM NO. 1: Plaintiff's Application and Interview--
Defendant's Questions for Plaintiff
FORM NO. 2: Plaintiff's Application and Interview--
Plaintiff's Questions for Defendant's Agent
[2]--Employment At-Will
FORM NO. 3: Employment At-Will--Defendant's
Questions for Plaintiff
FORM NO. 4: Employment At-Will--Plaintiff's
Questions for Defendant's Agent
[3]--Employee Handbook and Company Policies
FORM NO. 5: Employee Handbook/Policies--
Defendant's Questions for Plaintiff
FORM NO. 6: Employee Handbook/Policies--Plaintiff's
Questions for Defendant's Agent
[4]--The Plaintiff's Performance
FORM NO. 7: Plaintiff's Performance--Defendant's
Questions for Plaintiff
FORM NO. 8: Plaintiff's Performance--Plaintiff's
Questions for Defendant's Agent
[5]--The Plaintiff's Supervisors
FORM NO. 9: Plaintiff's Supervisors--Defendant's
Questions for Plaintiff
FORM NO. 10: Plaintiff's Supervisors--Plaintiff's
Questions for Plaintiff's Supervisors
[6]--Treatment of Similarly Situated Employees
FORM NO. 11: Treatment of Similarly Situated
Employees--Defendant's Questions for
FORM NO. 12: Treatment of Similarly Situated
Employees--Plaintiff's Questions for
Plaintiff's Supervisor
[7]--Record of Disciplinary Actions
FORM NO. 13: Disciplinary Records--Defendant's
Questions for Plaintiff
FORM NO. 14: Disciplinary Records--Plaintiff's
Questions for Defendant's Agent
[8]--Reason For Termination of the Plaintiff's Employment
FORM NO. 15: Plaintiff's Discharge--Defendant's
Questions for Plaintiff
FORM NO. 16: Plaintiff's Discharge--Plaintiff's
Questions for Defendant's Agent
[9]--Prior Lawsuits and Administrative Complaints
FORM NO. 17: Prior Lawsuits/Administrative
Complaints--Defendant's Questions for
FORM NO. 18: Prior Lawsuits/Administrative
Complaints-- Plaintiff's Questions for
Defendant's Agent
[10]--Deposition Testimony Pertaining to Common Topics
FORM NO. 19: Questions regarding Plaintiff's
Application and Resume

14 Specific Types of Discrimination Claims
[1]Sexual Harassment
    [a]Quid Pro Quo Harassment
    [b]Hostile Work Environment
    [c]Same-Sex Sexual Harassment
          FORM NO. 20: Sexual Harassment--Defendant's Questions for Plaintiff
          FORM NO. 21: Sexual Harassment--Plaintiff's Questions for Defendant's Agent
          FORM NO. 22: Sexual Harassment--Examination of Plaintiff
          FORM NO. 23: Sexual Harassment--Examination of Defendant
[2]Title VII
    [a]Types of Claims
        [i]Disparate Treatment Claims
       [ii]Disparate Impact Claims
    [b]Gender Discrimination
    [c]Race and Color
    [d]National Origin
          FORM NO. 24: Title VII Discrimination--Defendant's Questions for Plaintiff
          FORM NO. 24A: Title VII Discrimination--Defendant's Questions for Plaintiff's Economic Expert Background
          FORM NO. 25: Title VII Discrimination--Plaintiff's Questions for Defendant's Agent or Supervisor
          FORM NO. 25A: Title VII Discrimination--Defendant's Questions for Plaintiff in Sex Discrimination Case
         FORM NO. 26: Title VII Sexual Harassment--Examination of Plaintiff
         FORM NO. 27: Title VII Sexual Harassment--Examination of Defendant
[3]Age Discrimination
         FORM NO. 28: Age Discrimination--Defendant's Questions for Plaintiff
         FORM NO. 29: Age Discrimination--Plaintiff's Questions for Defendant's Agent or Supervisor
         FORM NO. 30: Age Discrimination--Examination of Plaintiff
         FORM NO. 31: Age Discrimination--Examination of Defendant's Agent
[4]Medical Condition/Disability Discrimination
        [ii]Disability Defined
        [iii]Major Life Activity
        [iv]"Qualified Individual"
    [b]Plaintiff's Burden of Proof
        [i]Discrimination Treatment Based on Disability
        [ii]Failure to Provide a Reasonable Accommodation
        [iii]Discrimination against Individual Who Has a "Record of" Disability
        [iv]Discrimination against Individual "Regarded as" Disabled
        [i]Undue Hardship
        [ii]Requested Accommodation Is Unreasonable
        [iii]Legitimate Non-Discriminatory Reason
        [iv]Job-Related and Consistent with Business Necessity
        [v]Direct Threat
FORM NO. 32: Plaintiff's Disability--Defendant's Questions for Plaintiff
FORM NO. 33: Plaintiff's Disability--Plaintiff's Questions for Defendant's Agent
FORM NO. 34: Medical Condition/Disability Discrimination--Examination of Plaintiff
FORM NO. 35: Medical Condition/Disability--Examination of Defendant
[5]Pregnancy/Family Care and Medical Leave
    [b]Plaintiff's Entitlement to Protection
    [c]Employer's Duty to Investigate
    [d]Prima Facie Case
    [e]Limited Defenses to FMLA Claims
    [f]Pregnancy Discrimination Act
FORM NO. 36: Plaintiff's Pregnancy/Family Care and Medical Leave--Defendant's Questions for Plaintiff
FORM NO. 37: Plaintiff's Pregnancy/Family Care and Medical Leave--Plaintiff's Questions for Defendant's Agent
FORM NO. 38: Pregnancy and Family Leave--Examination of Plaintiff
FORM NO. 39: Pregnancy and Family Leave--Examination of Defendant
    [a]The Plaintiff's Prima Facie Case
    [b]Defenses to Retaliation Claims
        [i]Trivial Acts
        [ii]No Causal Connection
FORM NO. 40: Retaliation--Defendant's Questions for Plaintiff
FORM NO. 41: Retaliation--Plaintiff's Questions for Defendant's Agent or Supervisor
FORM NO. 42: Retaliation--Examination of Plaintiff
FORM NO. 43: Retaliation--Examination of Defendant
[7]Sexual Orientation
FORM NO. 44: Sexual Orientation Discrimination--Defendant's Questions for Plaintiff

15 Damages
[2]Specific Damages Available to the Plaintiff
    [a]Damages for a Violation of the Family and Medical Leave Act (FMLA)
    [b]Damages for a Violation of Title VII (Including Sexual Harassment) and the Americans with Disabilities Act (ADA)
         [i]Back Pay
         [ii]Front Pay
         [iv]Emotional Distress and Compensatory Damages
         [v]Punitive Damages
         [vi]Attorneys' Fees
    [c]Damages for Age Discrimination under the Age Discrimination in Employment Act (ADEA)
FORM NO. 45: General Outline regarding Damages--Defendant's Questions for Plaintiff


Author Detail

Anthony J. Oncidi is a Partner with Proskauer Rose and Chair of the Labor and Employment Department in the Los Angeles office. Mr. Oncidi represents employers in all aspects of labor relations and employment law, including litigation, preventive counseling, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, union-related issues, wage and hour matters, executive employment contract disputes, employee handbooks and personnel policies, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, confidential information, trade secret protection and collective bargaining. A substantial portion of Mr. Oncidi's practice involves the defense of employers in class action wage and hour suits, employment discrimination and wrongful termination litigation in both state and federal courts. Mr. Oncidi also has particular experience in trade secret and unfair competition litigation and the defense of sexual harassment, discrimination, breach of contract and defamation lawsuits.

Mr. Oncidi has lectured to large groups of employers at numerous conferences and seminars, and he is a regular columnist on employment law issues for the Los Angeles Daily Journal and the State Bar of California's Labor and Employment Law Quarterly. He is a member of the Executive Committees of the Labor and Employment Law Sections of the State Bar of California and the Los Angeles County Bar Associations.

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