Defense Discovery Subpoenas to Plaintiffs’ Former and Current Employers

To the extent that defendants seek “any and all . . .” documents relating to plaintiffs’ relationships with their former employers, courts have consistently rejected such requests as “overly broad on their face.”  See, e.g., Barrington v. Mortgage IT, Inc., 2007 U.S. Dist. LEXIS 90555 (S.D. Fla. Dec. 10, 2007) (rejecting subpoenas duces tecum which sought “any and all documents, files and records, reflecting or relating to the employment” of the plaintiff as “overly broad on their face”); Badr v. Liberty Mutual Group, Inc., 2007 U.S. Dist. LEXIS 73437 (D. Conn. Sept. 28, 2007) (holding that defendant’s subpoena of “any and all” records relating to plaintiff was overbroad and limiting the subpoena to documents relating to prior claims or complaints against plaintiff’s coworkers); Richards v. Convergys Corp., 2007 WL 474012 (D. Utah Feb. 7, 2007) (quashing overbroad subpoena duces tecum  directed to plaintiff’s former employer that sought “all documents in your possession or control regarding the employment of” the plaintiff); Richmond v. UPS Service Parts Logistics, 2002 U.S. Dist. LEXIS 7496, at *13 (S.D. Ind. Apr. 5, 2002) (holding that a  discovery request for the plaintiff's entire personnel file was “on its face” overbroad); Franzon v. Massena Mem. Hosp., 189 F.R.D. 220, 222 (N.D.N.Y. 1999) (finding that defendant's discovery request for "any and all documents" without limitations is overbroad).

In addition to being facially overbroad, courts have found that such subpoenas can have a “chilling effect” on a plaintiff’s decision to assert his or her legal rights.  See Rivera v. NIBCO, Inc., 364 F.3d 1057, 1065-66 (9th Cir. 2003) (recognizing that discovery that would cause a chilling effect on plaintiffs seeking to enforce their employment rights is an unreasonable burden and therefore affirmed the district court’s protective order); EEOC v. Bice of Chicago, 229 F.R.D. 581, 2005 U.S. Dist. LEXIS 15959 (N.D. Ill. 2005) (barring discovery seeking immigration status of employment discrimination plaintiffs because such discovery was oppressive, a substantial burden on the parties and the public interest and would have a chilling effect on victims of employment discrimination coming forward to assert claims). 

Moreover, when presented with such “overly broad” requests, courts have consistently rejected the requests on the grounds that they could be obtained through less obtrusive and intrusive means.  See Graham v. Casey's Gen. Stores, Inc., 206 F.R.D. 251, 254 (S.D. Ind. Mar. 18, 2002) (granting motion to quash subpoenas to present and former employers for plaintiff’s medical records in a discrimination case, since, while the plaintiff’s medical history is important to her disability discrimination claims, defendant could have obtained the records from her medical providers and had no need to take the more intrusive step of seeking this medical information from her employers); Conrod v. The Bank of New York, 1998 U.S. Dist. LEXIS 11634 (S.D. N.Y. July 30, 1998) (holding that documents the subject of a “broad subpoena” might have been obtained from plaintiff via less intrusive means); see also Collins v. Midwest Medical Records Assoc., Inc., 2008 U.S. Dist. LEXIS 18368, at 6 (E.D. Wis. Feb. 7, 2008) (granting plaintiff’s motion for a protective order and quashing defendant’s subpoena while noting “[i]f MMRA is unable to obtain the information it seeks directly from Collins, MMRA is free to file a motion to compel.”). 

We previously posted on this issue here, but as it relates to the instant post, it bears restating that courts have also held as a “general rule” that plaintiff’s prior job performance is irrelevant in employment cases. See Laffey v. Janssen, 2006 U.S. Dist. LEXIS 14833 (M.D. Fla. 2005) (excluding evidence of prior performance for the same employer). See also Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1511 (D.C. Cir. 1995) (holding that because plaintiff’s difficulties with interpersonal relationships at her prior job was irrelevant, the district court improperly admitted such evidence); Zenian v. District of Columbia, 283 F. Supp. 2d 36 (D.D.C. 2003) (holding that evidence of prior employment cannot be introduced in the attempt to prove that plaintiff acted consistently with his prior conduct); Fyock v. American Public Gas Ass’n, Civ. No. 2008 CA 006454 B (D.C. Sup. Ct. Apr. 24, 2009) (finding that defendant’s proffered justification for the discovery of plaintiff’s employment records—including that it is “standard practice” and that such discovery would "shed light on Plaintiff’s termination of previous employment” and “lead to discovery of admissible evidence"—failed to demonstrate how plaintiff’s employment records were relevant or discoverable).

And courts have consistently prevented discovery of employees’ character. See Neuren, 43 F.3d at 1511 (holding that the district court improperly admitted evidence of plaintiff’s difficulties with interpersonal relationships at her prior job); Zubulake v. UBS Warburg, LLC, 382 F. Supp. 2d 536 (S.D.N.Y. 2005) (holding that using plaintiff’s prior job performance to show plaintiff was insubordinate and uncooperative at the job he was terminated from was inadmissible propensity evidence); Fyock, Civ. No. 2008 CA 006454, at p. 9-10 (“As to Plaintiff’s employment with [his former employers], this Court finds that even if the Plaintiff’s employment records did contain evidence suggesting that Plaintiff had a problem with his emotional behavior during his employment with [his former employers], such information is irrelevant to Plaintiff’s claims of age discrimination, breach of contract and promissory estoppel.”).

Namely, such evidence would not be admissible at trial as its only purpose would be an attempt to prove that the employee acted consistently with his character as evidenced by his prior employment. See Neuren, 43 F.3d at 1511 (holding that the district court improperly admitted evidence of plaintiff’s difficulties with interpersonal relationships at her prior job); Zenian, 283 F. Supp. 2d at 40 (D.D.C. 2003) (“If the District is offering the [prior employment] evidence to show that plaintiff has always been a bad employee, it is doing exactly what it cannot do: introduce evidence of a person’s character to prove that his behavior on one or more occasions was consistent with that character. Fed.R.Evid. 404(a). … That, of course, is exactly what a litigant cannot do.”).

Character evidence is also generally considered not to be an element of any claim or defense in employment cases. See Zubulake, 382 F. Supp. 2d at 539 n.1 (“Plaintiff’s character is not an essential element of any claim or defense in an employment discrimination case. The prohibitions of Rule 404(b) therefore apply.”). See also EEOC v. HBE Corp., 135 F.3d 543, 553 (8th Cir. 1998) (plaintiff's character was not an essential element of his retaliatory discharge claim).

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