Clara and Bob,
This office handles a lot of employment law cases for plaintiffs (employees), and discovery access by one employer of a successor employer's personnel records can be a very delicate, even explosive, issue. As soon as the successor employer is subpoenaed by the predecessor employer, and unless the successor employer happens to be "in love" with the employee, there is often a pall cast over the relationship, to the psychological and possibly financial detriment of the employee. There is no prohibition on an employer firing an employee who becomes embroiled in litigation of any kind, nor is it unlawful retaliation if the subpoenaed employer decides to terminate the employee at some point.
So this litigant has an independent problem, that of retaining his job.
Below please find the section of a brief filed by a close colleague in support of a motion to quash a subpoena issued to an employer in an employment dispute case, which may be helpful on some of the public policy issues. Although clearly "off point" in terms of the marital versus employer/employee relationship, you can construct a good argument that what these folks are doing is harassing your client and threatening his livelihood, with no clear benefit to the real issues in the case.
Hanan
III. DEFENDANTS MUST OFFER A SPECIFIC REASON, AND NOT
WILD SPECULATION, TO JUSTIFY A FISHING EXPEDITION
THROUGH PLAINTIFF'S EMPLOYMENT RECORDS FOR HIS
ENTIRE CAREER
A. Plaintiff Has A Legitimate Privacy Interest In
Protecting The Confidentiality Of His Personnel Records
Defendants brush aside plaintiff's privacy interest in his personnel records, contending that every New Jersey case protecting privacy interests should be disregarded, because supposedly there is no "blanket" privacy interest in personnel records. D18-Db19. Defendants go on to argue even that a government employee's personnel records are "public records" that are generally open to the public. Db20-Db21. Both arguments are false.
We do not know what defendants are even talking about when they refer to a "blanket" privacy interest – a phrase we never mentioned in our brief, but which was used only by defendants. If defendants are trying to suggest that we have asserted the right to an absolute privacy interest that cannot ever be overcome, then defendants are engaged in a classic "straw man" argument. We have never said that plaintiff's privacy interests in his confidential personnel records can never be overcome. Rather, we have argued consistently that to overcome plaintiff's legitimate privacy interests, defendants must demonstrate a specific reason why the personnel records are relevant to the claims and defenses in the case. Pb6-Pb13.
There is no question, however, that an employee's personnel records are indeed private, and implicate the same privacy concerns as immigration records, tax returns, bank records or other similar, private information. "A person's interest in preserving the confidentiality of sensitive information contained in his personnel files has been given forceful recognition in both federal and state legislation governing the recordkeeping activities of public employers and agencies." Detroit Edison Co. v. NLRB, 440 U.S. 301, 318 n.16 (1979). These privacy interests have been repeatedly recognized and protected in employment litigation. Whittingham v. Amherst College, 164 F.R.D. 124, 127 (D. Mass. 1995) ("personnel files contain perhaps the most private information about an employee within the possession of an employer"); Gehring v. Case Corp., 43 F.3d 340, 342 (7th Cir. 1994) (privacy interests were proper basis upon which to prevent counsel from "root[ing] through the personnel files"); Raddatz v. Standard Register Co., 177 F.R.D. 446, 447-48 (D. Minn. 1997) ("the very act of disclosing an employee's sensitive and personal data is a highly, and frequently an unnecessarily intrusive act – whether or not that disclosure is governed by the terms of a confidentiality order"). And contrary to defendants' argument, New Jersey State courts have specifically recognized the privacy interest in employment records. See, e.g., Bayer v. Township of Union, 414 N.J. Super. 238, 273-74 (App. Div. 2010) (in case alleging violation of civil rights, plaintiff not entitled to internal affairs files regarding police officers, absent a showing they would be relevant to claimed violation).
B. Because Plaintiff Has A Legitimate Privacy Interest In His
Personnel Records, To Overcome That Privacy Interest
Defendants Must Offer A Specific Reason Why The Records
Are Likely To Be Relevant To Some Issue In The Case
Defendants disregard plaintiff's authority on this issue with another sleight of hand. They argue that in all the cases cited by plaintiff the employer was arguing that the employment records were relevant to either an after acquired evidence argument, or a propensity argument. Defendants claim they are making neither argument here, so all the cases should be ignored. Of course, defendants cite no case of their own which stands for the proposition that an employee's personnel records from another employer are subject to open-ended disclosure without proffering any reason. Db19-Db20.
Defendants' argument is false in its premise, and illogical in its reasoning. First, it is not true that the cases cited by plaintiff all exclusively involve claims of after acquired evidence or propensity. For example, Perry v. Best Lock Corp., 1999 U.S. Dist. LEXIS 23601 (S.D. Ind. Jan. 21, 1999) involved an employer making one of the same arguments defendants make here – that it should gain access to personnel records from the other employer, because they might reveal information about "previous disciplinary and performance problems or other frivolous claims that plaintiff may have brought against other employers." Compare Db11-Db12 (claiming the right to obtain access to "Employment Difficulties Evidenced by Complaints and Performance Review in Personnel Files"). Nonetheless, the court held that this speculation was not enough to justify the disclosure of the employee's personnel records. "[T]he subpoenas look like nothing more than a fishing expedition, or, more accurately, an exercise in swamp-dredging and muck-raking." Perry v. Best Lock, 1999 U.S. Dist. LEXIS 23601, at *5-*9.
Likewise, in Woods v. Fresenius Medical Care Group of North America, 2008 U.S. Dist. LEXIS 3756 (S.D. Ind. Jan. 16, 2008), the employer argued that the records might shed light on the employee's credibility. Compare Db22 (claiming the right to discover "whatever potential misrepresentations [plaintiff] may have made to either WPU or the University or whatever material information he may have failed to disclose to either WPU or the University") (emphasis added). But the court in Woods rejected such wild speculation as a basis for allowing disclosure of plaintiff's personnel records, because "the Defendant simply wants to 'fish around' in order to see what it might uncover." Woods, 2008 U.S. Dist. LEXIS 3756, at *4-*6.
And in Harmon v. Great Atlantic & Pacific Tea Co., 273 N.J. Super. 552 (App. Div. 1994), the employer argued that disclosure of plaintiff's bank records might be relevant to plaintiff's claims of emotional distress. Compare Db11-Db13 (arguing that plaintiff's personnel records from both past and subsequent employers should be disclosed without limitation because they might disclose information relevant to "alternate stressors"). But the Appellate Division in Harmon rejected this argument, and held that personal records should not be disclosed absent a showing of "compelling need," because otherwise "many personal unrelated matters would be open to scrutiny without sufficient cause." Id. at 558-559.
But the larger point is that regardless of the reasons offered for compelling the disclosure of plaintiff's personnel records, the courts uniformly hold that the discovery demand must be based on something more concrete than wild speculation or a desire to embark on a fishing expedition to see what might turn up. Serrano v. Underground Utilities Corp., 407 N.J. Super. 253, 281 (App. Div. 2009) ("[d]efendants should be required to present a more specific and compelling proffer of admissibility" before allowing further discovery regarding immigration status); Premer v. Corestaff Services, L.P., 232 F.R.D. 692, 693 (M.D. Fla. 2005) (disclosure of personnel records should not allow "employers fishing-expedition style discovery"); Jones v. St. John's Health System, 2007 U.S. Dist. LEXIS 63274, at *3 (S.D. Ind. Aug. 27, 2007) (defendant employer "will not be permitted to pursue this expansive discovery [regarding personnel records with former employers] just to find out what might turn up"); Chamberlain v. Farmington Savings Bank, 2007 U.S. Dist. LEXIS 70376, at *7-*8 (D. Conn. Sept. 25, 2007) (employer not entitled to access to personnel records with former employers "on the basis of pure speculation"). Defendants cite no contrary authority.
However, "pure speculation" is all defendants have here. They cannot point to any concrete reason why the disclosure of plaintiff's personnel records for his entire career will lead to any relevant evidence. They simply want to engage in a classic fishing expedition to see what "turns up." They cite absolutely no case that justifies such an invasion of plaintiff's privacy.
Original Message------
In Berrie vs. Berrie, 188 N.J. Super.274(Ch.Div, 1983) plaintiff's brother filed a motion to quash a subpoena duces tecum where, as a non-party, he was compelled to disclose in discovery proceedings information which he considered confidential but which may have provided collateral or supportive evidence of the value of a property subject to equitable distribution. Plaintiff was permitted to depose his brother for testimony regarding comparable sales of a company in the same business because he sold his in the last year. Such testimony was sought to be elicited towards proof of the valuation of plaintiff's business for equitable distribution in his divorce. Plaintiff's brother sought to quash the subpoena. While the court allowed the plaintiff's brother as a non-party to be deposed where information was relevant to the case, the court concluded that the information sought was speculative, not essential to the case and that the brother's right to privacy in personal financial affairs and personal confidential business information far outweighed the necessity of disclosure. Therefore, the court quashed the subpoena served upon plaintiff's brother by the plaintiff on the basis that the requirement for him to provide the documents was unreasonable and oppressive, imposed an undue burden on him and was an unwarranted intrusion and invasion of his rights.
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Robert Goldstein Esq.
Manalapan NJ
(732)972-1600
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Original Message:
Sent: 01-06-2015 15:20
From: Hanan Isaacs
Subject: Quashing subpoena to third party
Clara,
I agree with David. The trial court is obligated to review the requested discovery and balance privacy and other interests against the need for the evidence. If your client is likely to be hurt by the demand, let alone the disclosures, a motion to quash is key.
And you have to immediately advise the employer(s) NOT to release the information ahead of time!!! Sometimes they do that just to avoid the problem of dealing with court, lawyers, etc. The subpoena itself may instruct them to release the information unless they receive a motion to quash. But you have to anticipate their mistaken early release and tell them or their legal counsel, by phone and fax, not to release anything until they get a court order directing them one way or the other.
If you need help with the motion, let me know offline. We can coach you.
Hanan