The General Scope of the After-Acquired Evidence Doctrine
The United States Supreme Court found in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995) that "[o]nce an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if the information might have gone undiscovered absent the suit." Id. "Where an employer seeks to rely upon after acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge." Id. If that can be proven, " ... neither reinstatement nor front pay is an appropriate remedy," and the "...beginning point in the trial court's formulation of a remedy should be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered."
Determine How Likely the Doctrine Is To Come Into Play At Deposition
It is not uncommon for a defendant to discover during a deposition that statements the plaintiff made on their employment application, on their resume, or orally during the interview process are not entirely true. Sometimes such statements are outright falsehoods. Other unknown wrongful employment conduct may also be discovered. While the discovery of such information will not, under the McKennon decison, form an "additional" basis to support the original termination decision, and while it will not excuse an otherwise wrongful termination, it may operate to cut off or limit certain types of damages and remedies as outlined above. See also Wallace v. Dunn Constr. Co., 62 F.3d 374 (11th Cir. 1995). For this reason, if there is reason to believe that such information could be discovered in the plaintiff's deposition, the sooner that deposition is taken, the more damages it can potentially limit.
Consider Whether the Newly Discovered Wrongful Conduct Would Be Material
The fact that the former employer discovers some bad act by the employee, such as providing false information on an employment application, during discovery does not automatically trigger the defense. The employer will have to show that it would have acted to terminate the employee earlier on that basis had it known the new information. The employer's written policies and procedures should be reviewed to determine if there is any written prohibition of that particular misconduct. Whether or not other employees were terminated for that infraction is also important. Also, note that, under the laws of some states, misrepresentations as to holding college degrees or licenses that are not actually held may be a crime. Crimes are normally prohibited conduct. The attorney will have to decide whether he or she will be able to prove the materiality of the information that may be acquired during deposition discovery to assess whether the doctrine is likely to come into play.
If Newly Discovered Material Information Is Obtained During Deposition, Assert The After-Acquired Evidence Doctrine As An Affirmative Defense
If, during the plaintiff's deposition, newly acquired material information is discovered that would have been grounds for dismissing the plaintiff from their employment earlier, I would suggest amending the defendant's answer to assert the after-acquired evidence doctrine as an additional affirmative defense. This avoids an argument by the plaintiff that they were surprised by the invocation of that defense.
Check Your Jurisdiction's Interpretations of McKennon
The after-acquired evidence doctrine continues to be litigated and interpreted after McKennon. There may be splits among Circuits as to some aspects of its reading and application. Therefore, please check your jurisdiction's case law on the doctrine against the general summary in this article.
One Factor Among Many
This article proposes that the likelihood that the application of the after-acquired evidence rule will come into play is one factor that should be considered in choosing the timing of the employment plaintiff's deposition. While it is an important consideration, obviously there are many other variables. It is a tactical judgment call by defense counsel whether to seek an early deposition or not under the facts and circumstances of a particular case.
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