07.16.2011
Court Of Appeal Decision Gives Employers Basis For Resisting Fishing Expeditions Seeking Records Of Non-Party Current And Former Employees

Employment litigation often gives rise to discovery demands by the plaintiff(s) seeking information about the employer's other current and former employees who are not parties to the litigation and, often, employment records of such non-party employees. This occurs in both class action cases and in non-class action cases. In many cases, such discovery demands are little more than thinly disguised fishing expeditions at the employer's expense. Although existing case law recognizes the privacy rights of non-party current and former employees and generally requires courts to balance those privacy rights against the legitimate discovery needs of plaintiffs in employment cases and to employ certain safeguards, those laws are not always consistently applied by trial courts.

Yesterday, in Life Technologies Corporation v. Superior Court, the California Court of Appeal issued a decision reversing a trial court order requiring the defendant employer to provide to the plaintiff alleging he was discriminated against because of his age detailed information about the employer's current and former employees and set forth steps trial courts must take to protect the privacy rights of current and former employees who are not parties to the lawsuit.  

In the decision, the Court of Appeal first recognized and reiterated current and former employees have a recognizable privacy interest in their personal contact information and, to an even greater degree, in their employment records. Although in some circumstances a plaintiff's legitimate need to obtain certain information will outweigh the recognized rights to privacy, "the balance will favor privacy for confidential information in third party personnel files unless the litigant can show a compelling need for the particular documents and that the information cannot reasonably be obtained through depositions or from nonconfidential sources."  Emphasis in original. Further, "Even when the balance does weigh in favor of disclosure, the scope of disclosure must be narrowly circumscribed." Emphasis in original.

The court went on to articulate the steps trial courts must take to determine whether information about non-party current and former employees must be disclosed or not and, if so, what safe guards should be used.

Trial courts must first balance the privacy rights of non-party current and former employees against, again, the legitimate discovery needs of the plaintiff(s).Each separate category of documents or information sought must be separately analyzed. For example, with respect to personal contact information of current and former employees, the court noted that such information is not always discoverable, particularly when the party seeking that information does not show that the persons whose personal contact information is being sought are percipient witnesses to relevant events.  

When a trial court determines that information about non-party current or former employees is discoverable, the trial court must then provide such non-parties the opportunity to object to the disclosure of documents or information before the documents or information is released. The Court of Appeal explained that such safeguards exist when such documents and information is sought by way of a subpoena and states: "We do not believe a nonparty employee/former employee should be deprived of such protections simply because the discovery vehicle used is a set of special interrogatories, rather than a subpoena. . . ."

When a trial court determines that information about non-party current or former employees is discoverable, the trial court must also take steps "for maintaining the confidentiality of any disclosed information, by sealing it and/or limiting its use and dissemination."  

We are pleased by today's decision. We think it likely provides employers a much needed basis for resisting the sort of fishing expeditions that have become all too common in employment litigation in California. 

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