Legal units should have standard procedures for responding to enforcement unit requests for advice and assistance and processing administrative matters (e.g., written requests for legal opinions, cause reviews, reviews of letters of determinations, reviews of proposed settlement and conciliation agreements, subpoena reviews, determinations on petitions to revoke or modify subpoenas, and defending subpoenas of records and staff). The procedures should include processing times agreed upon by the Regional Attorney and Office Director.
The legal unit should keep records of documents received from the enforcement unit requiring legal unit action, and should include at least the following information: date of receipt, type of assignment, legal unit staff member assigned and assignment date, and date of return to the enforcement unit. Use the "administrative cases" entry in the Commission's Integrated Mission System (IMS) regarding the following matters: Cause Review (pre-LOD), Subpoena Review, Draft Subpoena Determination, and Freedom of Information Act (FOIA).
Regional Attorneys should ensure that attorney staff are available to respond to questions or other requests for immediate assistance from enforcement unit staff. Although an attorney is always free to suggest that an investigator consult his or her supervisor about a question presented to the attorney, there should be no requirements that investigative staff follow any chain of authority or fulfill any other formal conditions before talking to an attorney. Attorneys should be completely accessible to investigators and the Regional Attorney is responsible for establishing an office environment in which investigators are comfortable in approaching attorneys informally on any kind of matter.
These administrative assignments are discussed separately because while they often can be performed quickly, they are sometimes processed under the same timeframes as more complex assignments such as cause reviews and preparation of subpoena enforcement actions, thus unnecessarily delaying investigations. Proposed subpoenas should normally be reviewed and returned to the enforcement unit within a few days of receipt in the legal unit. Legal units should consider having supervisors review proposed subpoenas themselves rather than incurring the administrative delays involved in assigning them to attorneys.
Nothing in this subsection should be read to minimize the importance of careful review of proposed subpoenas, ensuring that issuance of the subpoena is appropriate and that it is worded clearly and requests only relevant information.
Offices without permanent legal unit staff should be visited by one or more attorneys at least once a month, and every effort should be made to make more frequent trips. Visits should be scheduled sufficiently in advance to enable enforcement staff to plan what to present to the attorney, and should be of sufficient duration to provide all necessary assistance. Attorneys should be formally assigned to the support of staff in these offices and substitutes should be designated on days when the assigned attorneys are not available. Names and telephone numbers of assigned attorneys and substitutes should be provided to enforcement unit staff. Whether or not legal staff are stationed in an office, investigators should be encouraged to contact assigned attorneys frequently and informally. Legal unit timeframes for processing administrative matters received from enforcement unit staff are the same regardless of whether the enforcement unit has permanent legal staff (see subsection 1.a. above).
Review of trial attorney work by a supervisor is essential to the consistent production of quality legal work. This includes review of matters such as preparation for depositions and negotiations, all written work other than routine correspondence, and preparation for all hearings and trials. Such review must be performed regardless of the ability of the trial attorney. The objective is not simply to ensure that legal work is performed competently (which is required by professional ethical rules, see ABA Model Rules of Professional Conduct 1.1 (requiring competent representation) and 5.1 (holding legal managers and supervisors responsible for their staffs’ compliance with the rules of professional conduct)), but that it is of the highest quality that the combined efforts of the legal unit staff can produce. Where legal work is performed by a supervisory trial attorney it should be reviewed by the Regional Attorney or another supervisory trial attorney.
Where attorneys are stationed in offices without supervisory staff, procedures must be established to ensure the same degree of review of their legal work that occurs for attorneys stationed in field legal units with onsite management. In addition, for each suit on which such an attorney is lead counsel, a complete set of the litigation and correspondence files described in subsection 9. below should be maintained in the legal unit where the Regional Attorney is stationed as well as in the office where the attorney is stationed.
A written discovery plan should be prepared prior to the filing of each suit. No particular format is required, but the plan should contain the following information: the elements of proof required for each claim, the evidence necessary to establish each element, the expected sources of the evidence, and the order (and to the extent possible the timing) in which through discovery or other means the evidence will be obtained. The plan should be modified as necessary as the litigation progresses.
Regional Attorneys are required to conduct quarterly conferences on each case in litigation and to ensure that timely reports of the conferences are prepared. Copies of the reports should be submitted to the legal unit’s Litigation Management Services (LMS) liaison by the 15th of the first month of each quarter. At the case conference, the Regional Attorney should meet with the assigned supervisory trial attorney and trial attorney(s) and discuss what has occurred in the case since the last conference and what activities are planned for the upcoming months. This is also a good time to ensure that the case files are complete and the indexes up to date. The Regional Attorney should of course be involved in litigation planning on an ongoing basis, with the case conference being only one of many discussions he or she will have on each active case during the quarter. The requirement that formal case conferences be held has two purposes: first, to insure that at least once a quarter a structured meeting is held on each case, at which the merits of the case are carefully evaluated, litigation strategies are explored, and future activities are planned and scheduled; and second, through the reports of the conferences, to provide an accessible source of information for other agency staff on the course of the litigation.
The Regional Attorney will decide which of the participants is to prepare the report of the conference, but the Regional Attorney is responsible for the quality and uniformity of the unit’s reports. A recommended format for the report is provided in the appendix to this subsection. The body of the report should contain the following information: a brief description of what the case is about (this should consist of more than just a conclusory statement of the claims; it should set out the principal facts on which the claims are based); significant activities by each party since the last report; an assessment of the merits of the case in view of the discovery conducted thus far; anticipated proof problems, procedural issues, and similar matters warranting comment; schedules set by the court for discovery and other pretrial and trial matters; the state of settlement negotiations, including an appraisal of the prospects for settlement; and projected future litigation activities. Future activities should be described with as much specificity as possible and dates provided for when each activity is expected to take place. The report should be easily understandable by a third party.
For each case in litigation, a document should be maintained that records chronologically every court filing, every discovery request and response, and all other significant litigation activities such as court orders of any kind and court conferences and hearings. Litigation related activities such as communications with claimants and opposing counsel and office strategy meetings should be recorded on case conference reports rather than on case status sheets, which are meant to serve as an easy to follow record of formal litigation activities. Case status sheets should be submitted quarterly to your LMS liaison together with the case conference reports.
All mail should be reviewed by a supervisor and distributed to the attorney assigned to the matter as early as possible on the date of receipt. Although copies of litigation-related mail must be made for the office’s litigation filing system, this must not delay distribution to the assigned attorney. If necessary to avoid delays in distribution, one copy of the document can be made immediately following supervisory review, with additional copying and the filing itself taking place later. Distribution to the assigned attorney should not be delayed if the supervisor will not be able to review the document immediately or if the supervisor’s review will take more than a few minutes. In either of these situations, the assigned attorney should be given a copy of the document prior to supervisory review.
With the ever-increasing reliance on electronic communications today, communications that used to be mailed or faxed are now likely to be sent only by e-mail. Such e-mails are considered Commission “records” subject to EEOC Order 201.001, Records Management. Recipients of litigation-related e-mails should print copies of them for filing in the office’s litigation filing system. (See discussion in Manual Part 1, section I.B., Records Management: File Creation, Maintenance, and Disposition, at subsection 3.b.) Like delays in distributing regular mail, delays in distributing e-mail -- especially e-mail that contains critical information or a deadline – should also be avoided. If an attorney is away from the office and will not be checking e-mail, the supervisor should have a contingency plan for screening the attorney’s e-mail for critical and time-sensitive communications.
Legal units should maintain court documents and discovery materials centrally in clearly marked and indexed binders. Legal units should maintain litigation related correspondence in separate centrally located files. Centralized files should not be removed from the office, and attorneys should generally work from copies of documents rather than the centrally maintained files.
Litigation files and litigation related correspondence files are considered Commission “records,” subject to EEOC Order 201.001, Records Management. The Order sets forth procedures for creating, maintaining, retiring, and preserving litigation and other records. (See discussion in this Part of the Manual, section I.B., Records Management: File Creation, Maintenance, and Disposition, at subsection 4.a.)
FOIA requests should be logged into IMS on the date of receipt and processed within the regulatory time limits. These time limits must be strictly followed. FOIA request files are Commission “records” that must be created, maintained, retired, and eventually destroyed as set forth in EEOC Order 201.001, Records Management. (See discussion in this Part of the Manual, section I.B., Records Management: File Creation, Maintenance, and Disposition at subsection 4.b.)
A legal unit staff member should be assigned responsibility for filing library materials and keeping the library in order. All library materials should be filed within a week of receipt.
|CASE NUMBER:||CLASS OR INDIVIDUAL:|
|COURT:||JURY OR BENCH TRIAL:|
|DATE COMPLAINT FILED:||ATTORNEY:|
|STATUTE:||DATE OF REPORT:|
|BASIS:||DATE OF LAST REPORT:|
BRIEF DESCRIPTION OF CASE: