Do plaintiffs in employment cases have a legitimate privacy interest in information regarding their subsequent employment? Nowadays, most courts say yes. An increasing number of courts have frowned on the employer’s practice of subpoenaing employment records from a plaintiff’s subsequent (or in some cases, current) employer. The growing list of cases has recently gotten longer. As reported in The Legal on Feb. 27 (“Former Worker Quashes University’s Subpoena”), U.S. Magistrate Judge Karoline Mehalchick of the Middle District of Pennsylvania quashed a subpoena served by the employer, University of Scranton, on a former employee’s current employer. The case is Kimes v. University of Scranton, 2015 U.S. Dist. LEXIS 21703 (M.D. Pa. Feb. 24, 2015).

The practice is quite common. In most employment discrimination cases, management-side attorneys will routinely subpoena records from the plaintiff’s subsequent (or current) employer under the guise that information is needed to substantiate the plaintiff’s attempt to mitigate his or her damages. At least, that is what was alleged by the defendant in the Kimes case. However, in studying the reported cases more closely, employers have advanced all sorts of arguments for subpoenaing the records of the plaintiff’s subsequent (or current) employer, such as to formulate a possible after-acquired evidence defense, to investigate any previous disciplinary problems, and to confirm if a plaintiff has a penchant for bringing frivolous claims. (See U.S. Equal Employment Opportunity Commission v. Princeton HealthCare System, No. CIV.A. 10-4126 PGS, (D.N.J. May 9, 2012).)

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