Employer Sought to Rummage Through Plaintiff’s Former Jobs

Originally published by Thomas J. Crane.

One recurring issue in employment cases is the breadth of discovery that is allowable. Many employers want to seek the records of the plaintiff’s former jobs. That means the employer can possibly rummage around the employee’s former jobs and see if there is any dirt that will help the employer. Unfortunately, some plaintiff attorneys do not resist those subpoenas. But, it is important to do so. No one should give up total privacy simply because s/he filed a civil rights lawsuit.

In Henry v. Morgan’s Hotel Group, No. 15-CV-1789 (S.D. N.Y. 1/25/2016), the federal Judge agreed that an employer should not have unfettered access to a plaintiff’s entire work history. The employer, as many employers do, submitted overboard requests when it asked for records from three former employers. Morgan’s Hotel Group sought all records related to Phillip Henry, the plaintiff. The court felt that simply requesting “all” records was itself a basis to quash the subpoenas.

[That makes sense. “All” records would include financial and medical related records. How could those sorts of records possibly be relevant to a lawsuit against a new employer alleging discrimination?]

The subpoenas were based on the old standard for discovery, whether the records are reasonably calculated to lead to admissible evidence. The new standard focuses on documents that are relevant in proportion to the importance of the issues, the resources of the parties, and the burden or expense of the discovery. The employer justified its request on the grounds that Mr. Henry claimed to be an “exceptional” waiter based in part on his experience at these three prior restaurants. It wanted to test his claim and see if it was true. But, as the court noted, whether he was exceptional or not, that would have no bearing on any discrimination at his job where he was fired. And, the employer offered no suspicion or basis for its belief that Mr. Henry had exaggerated or lied about his qualifications. So, found the court, the discovery was not proportional to the asserteded need.

The employer also failed to send advance notice to the plaintiff’s lawyer before sending the subpoenas to former employers. That lack of notice violated federal rules. At least one employer had already produced some records before the plaintiff l lawyer could submit her motion to quash.

To make things worse, the subpoenas were served on the former employers and the plaintiff’s lawyer on Christmas Eve, a “sharp” tactic noted by the court. See decision here.

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