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Evidence that is created by a party that is relevant to a discrimination
case may usually be discovered by the
opposing party in litigation, and possibly administrative proceedings. During discovery a
party may seek not only admissible evidence, but also evidence that is
reasonably calculated to lead to the discovery of admissible evidence. The
evidence may include things that a party may not expect to be disclosed,
like personal notes, drawings, calendars, electronic mail, and computer files. The
scope of questioning in depositions is also broad. The employer's attorney
may question complainants about their education and employment history,
other discrimination cases they have been involved in, and their record
of felony convictions. If the complainant seeks compensatory damages for
emotional distress, the employer's attorney may ask the complainant about
their emotional condition and medical treatment. There are privileges that may protect some evidence
from disclosure; for example, communications with
attorneys that are covered by the attorney-client privilege. Complainants
should seek legal advice if they have questions about the discovery of evidence.
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