“Have You Identified All Facts Supporting Your Claims?”

In Bright v. Coca Cola, 12-cv-234 (EDNY Nov. 3, 2014), an employment discrimination case, the Eastern District of New York granted summary judgment in defendant’s favor.

Judge Cogan’s decision is instructive regarding the use of depositions in employment litigation. For non-lawyers/litigators, a “deposition” is (briefly and generally speaking) a witness’s out-of-court testimony that is reduced to writing, usually by a court reporter, for later use in court or for further information-gathering. Depositions are one of many tools available as part of “discovery” in civil litigation.

If, as is typical in employment cases, the defendant moves for “summary judgment” under (in federal court) Federal Rule of Civil Procedure 56, the plaintiff must point to evidence demonstrating a “genuine dispute as to any material fact”. If plaintiff can’t do this, their case will be dismissed. Deposition testimony is a frequently-used source of information for this purpose. Its importance, as such, cannot be underestimated.

Judge Cogan underscored this point in the Bright case. Specifically, he explained:

At the outset, I note a problem that pervades the entirety of plaintiffs’ opposition to summary judgment. Each of the plaintiffs in this action was deposed. Each of the plaintiffs was asked, at their deposition, whether they had identified all the incidents underlying their claims of racial discrimination, hostile work environment, and/or retaliation, as relevant to each individual plaintiff’s claims. Each plaintiff responded that they had.

Nevertheless, in opposing summary judgment, many of the plaintiffs have submitted affidavits in which they have suddenly and conveniently recalled additional incidents that support their claims. And it is not just one or two incidents—one plaintiff, Sandra Walker, added twelve additional incidents that she argues support her hostile work environment claim.

[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony.

A defendant in an employment discrimination case must be able to ask a witness specific questions about incidents that she recalls at her deposition, and then to close the circle on that information by asking, “are there any other incidents?” If the party cannot rely on a negative answer to that question in making its motion for summary judgment, then its ability to move for summary judgment based on the record as developed would be unfairly compromised. See Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969) ( “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”). It was up to plaintiffs’ lawyer to prepare their witnesses for deposition so that each of their recollections would be sufficient to describe the incidents that supported each of their cases, and in the event a plaintiff suffered a lapse of memory during the deposition, to examine that plaintiff at the deposition to refresh her recollection.

Waiting until plaintiffs have read or been briefed as to defendant’s summary judgment motion before they “remember” what happened is not permitted. Plaintiffs cannot testify in deposition that they have identified all of the facts underlying their claims, and then submit an affidavit in which they happen to recollect other key facts. I will not consider any facts that plaintiffs have added to their claims by affidavit in contradiction to their depositions.

If anything, every employment discrimination plaintiff should assume that they will be asked, at a deposition, “Have you identified all of the facts supporting your claims?”.

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