Discovering a Plaintiff’s Current Personnel File
Kristen M. Johnson, Esq.
Schwartz Semerdjian Ballard & Cauley LLP
In a recent employment discrimination case, an issue arose over the production of the plaintiff’s personnel file from the plaintiff’s current employer. The plaintiff brought an action against her former employer for unlawful discrimination, harassment, and constructive termination. Upon learning that the plaintiff started her new job the Monday following her Friday resignation, the defendant served a deposition subpoena for production of business records on the current employer seeking the plaintiff’s personnel file including: all documents, e-mails and job applications related to the employee’s hiring and pay rate. The defendant wanted these documents in order to ascertain whether the timing of plaintiff’s new employment coincided with the allegations in her complaint. Namely, the relatively recent discrimination which led to her constructive termination; or whether she applied with her new employer long before any alleged discrimination begun. Also of interest was whether there was a difference in pay at plaintiff’s new employment because the plaintiff was alleging lost wages even though she had no time off between jobs. In response, the plaintiff objected to the production of documents on privacy grounds, filed a motion to quash service of the subpoena, and dropped her lost wages claim in an attempt to limit the scope of discovery. Ultimately, the court denied the motion to quash the deposition subpoena, but not without extensive briefing on both sides and tailoring the scope of the subpoena such that the defendant would only be entitled to documents the plaintiff was unable to produce on her own.
This article discusses the intersection of California’s right to privacy protection in personnel records with discovery sought from non-parties. When faced with employment related claims, discovery of personnel records is often a necessary part of fact finding as it can relate to lost wage claims and help to develop the timeline of events leading up to an employee’s termination or resignation. Courts are likely to be forced to weigh the interests of the party seeking the information against the privacy interest of the party seeking to protect that information. Also at issue is the possibility of bringing a new employer into the cross-fire of its new employee’s legal dispute with her former employer. It is important to understand the scope of discovery in this context and how a plaintiff should be conscious of how his or her case shapes how non-parties can become an integral part of the discovery process.
Deposition Subpoena for Business Records
When discovery stretches to non-parties in a lawsuit, California courts utilize deposition subpoenas to bring the non-party within the purview of the court. The deposition subpoena for business records is the specific discovery tool utilized when a party in a case is seeking the business records of a non-party. Discovery can easily become complicated when non-parties are brought into the litigation process under a deposition subpoena for business records. Either the witness subpoenaed, any party, or any consumer whose personal records have been subpoenaed may move to quash or limit a deposition subpoena for production of business records before the deposition is to take place. CAL. CODE CIV. PROC. §§ 1985.3(g), 1985.6(f), and 1987.1. As with any other discovery methods, discovery is cut off 30 days before the initial trial date. This means that all discovery proceedings must be completed on or before that date, including deposition subpoenas for business records. Pursuant to sectiond 2023.010 and 2024.020 of the California Code of Civil Procedure, discovery is considered completed on the day a response is due or on the day deposition begins. Also, the postponement or continuance of trial does not re-open discovery or the opportunity to serve a deposition subpoena for business records. Thus, requests from non-parties in an action coincide with the timing for traditional discovery requests.
Right to Privacy – Personnel Records
The right to privacy protected by the California Constitution, Article I, Section 1, is a fundamental liberty interest and extends to details of one’s personal life. City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 130; Valley Bank of Nevada v. Superior Court (1985) 15 Cal.3d 652, 656. However, California’s right to privacy is not absolute and disclosure of private information may be ordered if a “compelling public interest” would be served. Britt v. Superior Court (1978) 20 Cal.3d 844, 855. Courts recognize “the historically important state interest of facilitating the ascertainment of truth in connection with legal proceedings,” and carefully balance this interest against an individual’s right to privacy to determine if disclosure is appropriate. El Dorado Savings & Loan Assn v. Superior Court (1987) 190 Cal.App.3d 342, 345-46 citing Moskowitz v. Superior Court (1982) 137 Cal.App.3d 313, 316. See also Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 377 (recognizing a strong public policy in favor of discovery). “Where it is possible to do so, . . . the courts should impose partial limitations rather than outright denial of discovery.” Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 658.
When a plaintiff puts his or her private information at issue in litigation, he or she risks waiving his or her right to privacy in the protected information. Vinson v. Superior Court (1987) 43 Cal.3d 833, 842. Accordingly, though a plaintiff does not completely give up her right to privacy by filing a lawsuit, she “cannot be allowed to make her very serious allegations without affording defendants an opportunity to put their truth to the test.” Id. While there may be implicit partial waivers of the right to privacy, the scope of such waivers must be narrowly construed so that plaintiffs will not be deterred from bringing otherwise meritorious claims by the threat of public disclosure of private facts. Griswold v. Connecticut (1965) 381 U.S 479; Vinson v. Superior Court (1987) 43 Cal.3d 833, 842 citing Britt v. Superior Court (1978) 20 Cal.3d 844, 859; Life Technologies Corp. v. Superior Court (1992) 10 Cal.App.4th 640, 652-653.
An implicit waiver of a plaintiff’s right to privacy encompasses only discovery directly relevant to the plaintiff’s claim, and essential to the fair resolution of the lawsuit. Vinson, 43 Cal.3d at 842. The burden is on the party seeking the constitutionally protected information to establish direct relevance. Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665. The protected information should not be produced unless the requesting party “can show a compelling need for the particular documents and that the information cannot reasonably be obtained through depositions or from nonconfidential sources.” San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1097-98; Britt, 20 Cal.3d at 859-62. The state has two substantial interests in regulating pretrial discovery: one is to facilitate the search for truth and promote justice; the other is to protect the legitimate privacy interests of the litigants and third parties. Westinghouse Electric Corp v. Newman & Holtzinger (1995) 39 Cal.App.4th 1194, 1208.
Much of the case law dealing with discovery of personnel records is responsive to issues arising from the privacy interests of non-parties in an action and not the privacy interest of an actual party’s personnel file. See Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7 (denying plaintiffs request for production of other employees’ personnel files because the request was overbroad and not justified); Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1432 (permitting discovery of non-party potential class members in a class action lawsuit). Personnel records from one’s place of employment are confidential and are sometimes protected from disclosure by the right to privacy. See Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 528-30; El Dorado Savings & Loan Ass’n v. Superior Court (1987) 190 Cal.App.3d 342, 345.
Because the party seeking production of a personnel record must show direct relevance of the documents sought in discovery, a party seeking a personnel file is more likely to meet this requirement if the plaintiff has alleged that he or she suffers from lost wages. Furthermore, the closer in proximity of the start date of a plaintiff’s new employment to an employee’s resignation from its previous employer, the easier a showing of relevance can be made especially in the day of email communications between prospective employees with prospective employers. As long as the party seeking the personnel record tailors his or her request to information that is directly related to the allegations in the complaint, a plaintiff not wishing to get a new employer involved in a lawsuit the plaintiff has with his or her former employer may not be able to avoid this result. The deposition subpoena for business records is a powerful discovery tool and its potential consequences should be contemplated even before discovery begins in a case.