Thursday, July 18, 2019

Discovery of current employment records by former employer in litigation

If employees sue their former employers, can the former employer subpoena (or request via party discovery) the employees' records from their current employer?

I took a quick look at this issue here in the Middle District of Pennsylvania under the Federal Rules of Civil Procedure. Short answer? It is generally discouraged, but may be appropriate where the current employment records are specifically relevant to an issue in the litigation. Even then, the court may direct the employee to obtain the records rather than having a subpoena go out to his or her employer.

Here is an interesting opinion from Magistrate Judge Mehalchick in Zeller v. South Central Emergency Medical Services, Inc. She highlighted the concerns (with some nice research and citations to boot):
M.D. Pa. in Scranton
Individuals have "a legitimate privacy interest in information regarding [their] subsequent employment". E.E.O.C. v. Princeton Healthcare Sys., 2012 WL 1623870 (D.N.J. May 9, 2012); citing Warnke v. CVS Corp., 265 F.R.D. 64, 66 (E.D.N.Y.2010); see also Mirkin v. Winston Res., LLC, 2008 WL 4861840 (S.D.N.Y.2008). "[C]ourts . . . have recognized that because of the direct negative effect that disclosures of disputes with past employers can have on present employment, subpoenas in this context, if warranted at all, should be used only as a last resort". Warnke, 265 F.R.D. at 69; see also Conrod v. Bank of New York, 1998 WL 430546 (S.D.N.Y.1998); Gambale v. Deutsche Bank AG, 2003 WL 115221 (S.D.N.Y.2003); Mirkin, 2008 WL 4861840 . . . . Further, a plaintiff may have "a legitimate concern that a subpoena sent to her current employer under the guise of a discovery request could be a tool for harassment and result in difficulties in her new job. Graham v. Casey's Gen. Stores, Inc., 206 F.R.D. 251, 256 (S.D.Ind.2002).
But, that is not the end of the analysis. The records may be relevant to the litigation and discoverable despite the employee's privacy concerns. More citations! I realize this makes it less readable, but readers (and, frankly, I) sometimes come back to these entries to help with research, so I include the citations:
The Court finds that Plaintiff's post-termination employment records are relevant as to the issue of mitigation of damages, and specifically, the amount that Plaintiff could have earned with reasonable diligence. The employment records sought by Defendants from Plaintiff's current and prospective employers are likely to contain the information sought by Defendants, and a request for these documents thus is reasonably calculated to lead to the discovery of admissible evidence on the issue of mitigation. See Noble v. Ruby Tuesdays Restaurants, Inc., 2007 WL 3125131, at *2 (S.D.Ohio Oct.23, 2007) (in Title VII employment action, "[e]mployment records are relevant to the issues of mitigation and damages[.]"); E.E.O.C. v. Woodmen of World Life Ins. Soc., 2007 WL 649298, at *5 (D.Neb. Feb.1, 2007) (in Title VII employment action, court found that "although the plaintiffs have provided certain financial information, the employment records sought [from plaintiff's employers for whom plaintiff worked subsequent to her employment with defendant] . . . may contain information relevant to [plaintiff's] mitigation of damages. Additionally, [plaintiff's] general job performance records reasonably bear on the defendant's stated reason for [plaintiff's] demotion[.]"); Walker v. Northwest Airlines Corp., 2002 WL 32539635, at *2 (D.Minn. Oct.28, 2002) ("[B]oth past and post-termination wage and employment records are highly relevant to the issue of mitigation and to the computation of damages in this case . . . . [O]ther types of employment information such as disciplinary records, resumes, and applications . . . are reasonably calculated to lead to admissible evidence.").
The end result was that the plaintiff was afforded 30 days to produce the information sought by the defendant's subpoenas. That strikes me as a happy medium - the employer can get the information that is relevant to the case, and the employee does not have the uncomfortable situation of his employer getting hit with a subpoena relating to him.

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