Internal, external communications could be open to discovery in lawsuit

The significance of documenting employment decisions can’t be overstated and should come as no surprise to employers. Indeed, employment decisions that aren’t supported by documentation—such as poor performance reviews preceding a performance improvement plan—pave the way for lawsuits.

Equally important and more often overlooked, however, are internal and external communications and associated documentation that may not be part of the employee’s file. These communications may be fair game during the discovery process (the legal process of obtaining information in a lawsuit). A recent decision in an age discrimination case from the U.S. 7th Circuit Court of Appeals (whose rulings apply to employers in Wisconsin, Illinois, and Indiana) illustrates the importance of documentation.

Scope of discovery in Wisconsin

Wisconsin follows a liberal approach to discovery, encouraging the parties to disclose relevant facts and evidence to avoid surprises during trial. As long as the requested information is relevant and proportional to the needs of a case, it’s generally subject to discovery.

While communications with attorneys are privileged, internal and external communications and documentation generally aren’t, making them discoverable if they’re relevant and proportional to the needs of the case.

Facts