Turning Back Another Retaliatory Employment Defense Tactic: Quashing Current Employer Subpoenas

Turning Back Another Retaliatory Employment Defense Tactic: Quashing Current Employer Subpoenas

Bryan Schwartz Law, P.C. largely represents employees against their current and former employers – mostly, against their former employers. Few workers are brave enough to sue the entity that pays them every two weeks. Then, sometimes employers are stupid enough to fire employees who have just sued them – and thus incur the likelihood of additional retaliation claims. After employees have moved on – by choice or not – and begin working elsewhere, employers sometimes become curious during the discovery process about how those employees are faring. Some employers are so bold (or foolish, depending on your perspective) as to issue subpoenas to workers’ new employers for testimony and/or records. Sometimes it is an ill-conceived fishing expedition for something, anything to use against an employee. Some former employers seek evidence concerning employees’ post-termination income which might offset liability or support a mitigation defense. Often, ex-employers angered by litigation want to put “the fear of G-d” into employees suing them by trying to show that they can make those employees live in fear and with the taint of litigiousness – even while the workers are trying to start with a clean slate at a new employer. Mostly, such former employer tactics should and do fail.

In California, under Parker v. Twentieth Century-Fox Film Corporation (1970) 3 Cal.3d 176, the measure of recovery by a wrongfully discharged employee is “the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment.” 3 Cal.3d at 181. However, under the Parker rule, though some discovery may be warranted from an employment plaintiff into income earned or efforts made to secure alternative employment, California law does not support discovery from a third-party witness (e.g., subsequent employer) to assist an employer with its mitigation defense.

Because an individual’s employment records (personnel file, income data, etc.), are private, and California has robust protections for individuals’ privacy, employment defendants must show that they have no less intrusive means of obtaining this information, before they might have any viable argument for enforcing a third-party subpoena of a subsequent employer. See El Dorado Savings & Loan Assn. v. Superior Court (1987) 190 Cal.App.3d 342, 346 (refusing to order disclosure of employee personnel file where the relevant information could be obtained through “less intrusive means, such as deposing”); Lantz v. Superior Court, 28 Cal. App. 4th 1839, 1853-54 (1994) (constitutionally protected private information is not discoverable unless the party seeking discovery can demonstrate a “compelling need . . . so strong as to outweigh the privacy right when these two competing interests are carefully balanced”). See also TBG Ins. Services Corp v. Superior Court (2002) 96 Cal.App.4th 443, 449 (employee’s personal financial information stored on computer owned by employer); San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1097 (information in personnel file of trolley driver regarding his driving history and his mental capabilities at the time of accident in which the plaintiff was injured); Harris v. Superior Court (1992) 3 Cal.App.4th 661, 664 (tax returns and other personal financial information); Moskowitz v. Superior Court (1982) 137 Cal.App.3d 313, 315 (information about individual’s salary and fees). Moreover, “where it is argued that a party waives protection by filing a lawsuit, the court must construe the concept of ‘waiver’ narrowly.” See Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, 1387.

The court may quash a subpoena and issue a protective order to protect a witness or party from “unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” Cal Civ. Code. Proc. § 1987.1. A subpoena of a subsequent employer may well be unreasonable and oppressive in that: (1) violates an ex-employee’s right to privacy in his/her personnel records at a current employer; (2) seeks to annoy a third party regarding information readily obtainable from the ex-employee, who is a party; and (3) is almost invariably overbroad, seeking information that is irrelevant to the action before the court and not reasonably calculated to the discovery of admissible evidence.

Though California courts do not appear to have spoken to this precise issue in published opinions quashing subpoenas of subsequent employers of employment litigation plaintiffs, several federal courts have addressed the issue. Those thoughtfully considering the public policy implications have tended to quash subpoenas of records or testimony from subsequent employers. See, e.g., Graham v. Casey’s Gen. Stores, 206 F.R.D. 251 (S.D. Ind. 2002) (ex-employee asserting statutorily-protected claims should not be subject to discovery from a new, current employer, which might tend to harass and intimidate employee from pursuing his rights); Warnke v. CVS Corp., 265 F.R.D. 64 (E.D.N.Y Feb. 24, 2010) (granting a motion to quash subpoenas duces tecum served by defendant on plaintiff’s three subsequent employers, to protect “innocent discriminatee” from “the direct negative effect that disclosures of disputes with past employers can have on present employment”); Cannata v. Wyndham Worldwide Corporation, 2011 WL 3794254 (D.Nev. Aug. 25, 2011) (quashing subpoenas for records from subsequent employers of the plaintiff asserting statutory claims, rejecting employer’s “shotgun approach” to discovery).

Among other arguments, plaintiffs and their advocates should fight hard to quash subpoenas of subsequent employers by emphasizing the important public policy objectives under the Fair Labor Standards Act and California Labor Code are only vindicated if workers are not in fear of economic retaliation. See, e.g., Kasten v. Saint-Gobain Perf. Plastics Corp., __ U.S. __, 131 S.Ct. 1325, 1333, 179 L.Ed.2d 379 (2011); Barrentine v. Arkansas–Best Freight Sys., Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981); Williamson v. General Dynamics Corp., 208 F.3d 1144, 1150 (9th Cir. 2000); Gentry v. Superior Court (2007) 42 Ca1.4th 443, 459-461 (2007). California courts should explicitly follow those federal district courts that have held against employers trying blackball employees in the workforce, when ex-employers try to stigmatize them not only at the employer which was sued, but at subsequent employers, through the use of abusive discovery tactics. Courts should quash subpoenas for records and testimony from subsequent employers.

Contact Bryan Schwartz Law, P.C. today if your ex-employer is trying to retaliate against you for bringing protected claims against it.