Offensive — continued from Page 48
that is arguably in retaliation for the employee’s pursuit of discrimination or harassment claims, plaintiff’s counsel should be sure to amend the administra- tive charge of discrimination with the DFEH or other applicable administrative agency to include a charge of retaliation, and should either amend the civil com- plaint to add the new retaliatory acts or file a new complaint based on the new acts of retaliation. As with any retaliation claim under FEHA, if the employee is suc- cessful in convincing the jury that the claims against her were part of a cam- paign of unlawful retaliation, the plaintiff will be entitled to recover attorneys’ fees pursuant to Government Code section 12965(b).
Practice Tip: Orienting your law practice to anticipate cross- complaints The possibility of a cross-complaint
always exists when a lawsuit is filed. While in many cases, these cross-complaints lack merit and are merely part of an aggressive defense to the underlying lawsuit, they still require a response and add extra work to the lawsuit. Plaintiff’s counsel must account for this in his or her
retainer agreement by addressing how cross-complaints will be treated. Is the defense of the cross-complaint included in the general services covered by the contingency agreement, or will the employee be required to pay the attorney on an hourly or other basis to defend the cross-complaint? One factor to consider is whether the
claims in the cross-complaint allow the prevailing party to recover attorney’s fees. If so, it is important that the fee structure between the attorney and client not pro- vide an argument by the cross-com- plainant that the client did not incur any additional fees as a result of the cross- complaint and that the employee, even if successful in defending it, should be pre- cluded from recovering attorney’s fees.
The employer threatens to sue the plaintiff if company documents are not returned All too often, clients who believe they
were wronged may take documents from their workplace which they believe will help them prove their case. In other instances, clients simply have documents they accumulated while employed, either because they worked on projects at home
or retained work-related e-mails. When the employee responds to a request for production of documents and produces such documents during the ordinary course of litigation, the employer is alert- ed to the fact that the employee has pos- session of company documents. The employer may demand their immediate return and threaten to file a lawsuit if they are not returned. Plaintiff’s counsel must tread carefully. If the company has written policies
regarding the confidentiality of docu- ments, plaintiff’s counsel should carefully review the policies and determine whether any of the documents in the client’s possession fall within its scope. Even without such a policy, if there are documents which could be considered confidential, proprietary or privileged, counsel should carefully consider whether these need to be returned. There are published California cases
condemning “self help” discovery by ter- minated employees. For example, in Pillsbury, Madison & Sutro v. Schectman (1997) 55 Cal.App.4th 1279 [64 Cal.Rptr.2d 698], current and former employees of Pillsbury, Madison & Sutro
See Offensive, Page 52
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