The discovery of personnel records in employment discrimination lawsuits has a long history. A defendant employer may seek discovery of a plaintiff's employment records at a prior employer or with an employer he or she joined after leaving the defendant's employ, arguing that performance deficiencies at the other workplace may help demonstrate that the employee suffered from similar deficiencies while working for the defendant.

A plaintiff employee, on the other hand, may seek disclosure of the records of other employees, on several theories. Of course, she may seek the records of the individual she accuses of discrimination, to search for evidence that the alleged bad actor has a record of similarly offensive or improper conduct. She may also seek the records of other employees as comparators, to show that she was not treated as well as they in similar circumstances, which, she will claim, bolsters her argument that she was a victim of discrimination.

Additionally, a plaintiff may seek other employees' records to make a statistical argument, in order to rebut the employer's purported nondiscriminatory explanation for its employment decision.

"No Rigid Rule"

The treatment of this issue by the courts requires particular scrutiny following the 2015 amendments to Rule 26(a)(1) of the Federal Rules of Civil Procedure, which emphasized the importance of the assessment of "proportionality factors" when considering the scope of discovery. The issue also requires consideration of the degree to which an employer may assert a privacy or confidentiality interest over employee personnel files.

An important issue in considering requests of this nature, of course, is the fact that a "personnel file" may now be an anachronism. Records are in the cloud; they are scattered about Outlook folders; they are contained in human resources software; they may be found in text messages, emails, and maybe even scraps of paper in various locations—so any request for personnel records must be properly delineated and defined.

A relatively early view of a court's consideration of these issues while using pre-amendment reasoning can be found in Ladson v. Ultra East Parking Corp. (164 F.R.D. 376 (S.D.N.Y. 1996)). Stating "there is no rigid rule prohibiting discovery of employee personnel files," the court gave short shrift to the employer's argument that the plaintiff had no need for the records of present and former employees and supervisors.

The court noted that the employer failed to articulate a clear reason for declining to produce the records or that doing so would be particular burdensome, and stated, "The court is not prepared to allow defendants to determine what information is necessary for the plaintiffs to receive."

In response to the employer's contention that the files could not lead to the discovery of admissible evidence, the court stated that it was "at a loss to see" why not. "All that must be shown is that the discovery requested possibly might be relevant…or is reasonably calculated to lead to the discovery of admissible evidence."

Similarly Situated Individuals

Another pre-amendment case, Duck v. Port Jefferson School District, (2008 WL 2079916 (E.D.N.Y. 2008)) assessed the plaintiff's requests for files of individuals she claimed were similarly situated to her and would support her allegations of sex and age discrimination. Quoting Ladson's "no rigid rule" proposition, the court permitted discovery of files of individuals it held were similarly situated to the plaintiff, while noting that she would need to demonstrate that those individuals were similarly situated "in all material respects."

How to determine whether the employee can make this showing? The court cited to Second Circuit guidance (Graham v. Long Island Rail Road, 230 F.3d 34 (2d Cir. 2000)) that "what constitutes 'all material respects' … must be judged based on…whether the plaintiff and those he maintains were similarly situated were subject to the same workplace standards…. Hence, the standard for comparing conduct requires a reasonably close resemblance of the facts and circumstances of the plaintiff's and the comparator's cases, rather than a showing that both cases are identical."

The court found that the plaintiff was entitled to her co-workers' records because they would contain evidence of their ages and relative qualifications.

Similarly, in Sperling v. Harman International Industries, (2011 WL 4344165 (E.D.N.Y. 2011)) the court permitted an age discrimination plaintiff to obtain discovery of the records of other younger and allegedly less qualified employees to whom the employer allegedly distributed plaintiff's job responsibilities. Citing to pre-amendment Rule 26(b)(1), the court stated that the request appeared "reasonably calculated to lead to the discovery of admissible evidence," and ruled that the files were "undoubtedly relevant to plaintiff's claims."

How have the 2015 amendments to Rule 26(a)(1) affected courts' consideration of these issues? In 2018, the court in Chen v. Stony Brook University (2018 U.S. Dist. LEXIS 43608 (E.D.N.Y. 2018)) considered an age-and-national-origin plaintiff's requests for, among other things, an allegedly similarly situated co-worker's performance evaluations and resume. The court parsed these requests with care and assessed the difference that the Rule 26 amendments required with respect to its analysis of the issues.

"Proportionality Factors"

The Chen court noted that the Rule 26 amendments eliminated a court's prior discretionary authority to allow discovery of "any matter relevant to the subject matter involved in the action." Further, the court highlighted that "[n]otably absent from the present Rule 26 is the all too familiar, but never correct, iteration of the permissible scope discovery as including all matter that is 'reasonably calculated to lead to' the discovery of admissible evidence. This language was never intended to define the scope of discovery, but was intended only to make clear that the discovery is not limited by the concept of admissibility."

Instead, the court noted that "proportionality factors" must be assessed in considering discovery requests. These factors are:

• The importance of the issues at stake in the litigation;
• The amount in controversy;
• The parties' relative access to relevant information;
• The parties' resources;
• The importance of discovery in resolving issues; and
• Whether the burden or expense of the discovery is outweighed by the benefit. (Fed. R. Civ. P. 26(b))

In this context of perhaps heightened analysis of the request, the court permitted the employee access to the co-worker's performance reviews, but denied production of her resume. The court stated that while the appraisals were "both relevant and proportional to the needs of the case…[t]he same cannot be said of the resume," because the resume "is not indicative of a person's performance after obtaining an employment position."

Producing the resume would not have been burdensome to the employer, and the proportionality test did not hinge on that issue.

A more recent case, La Belle v. Barclays Capital Inc., (2020 U.S. Dist. LEXIS 66736 (S.D.N.Y. 2020)) while involving a third-party subpoena as opposed to a discovery request, may provide a bellwether for how these issues should be decided. The plaintiff there issued a subpoena to a non-party client of his employer, seeking records that might reflect the behavior of his former supervisor, who was now employed by the client, during a negotiation involving the client. In particular, the plaintiff sought documents and communications concerning the client's hire of his former supervisor, including all communications between the supervisor and any of his agents or representatives.

The court narrowed the scope of the subpoena to permit production of only internal documents that referred both to the hiring and to the particular negotiation. In so doing, the court pointed to the sea change in discovery contemplated by the 2015 amendments, stating:

Part of the parties' inability to agree on a resolution of their dispute may derive from plaintiff's erroneous belief that, as he puts it in his letter, "it is black letter law that relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." However, a party's ability to obtain discovery of material that is merely "reasonably calculated" to lead to admissible evidence was eliminated in the 2015 amendments to Rule 26…. Under the rule as it is actually written, discovery is limited to matters that are "relevant" to a claim or defense and "proportional to the needs of the case." (Id. at *4 (citations and brackets removed)).

Courts' recognition that an employer has an interest in maintaining the confidentiality of employee personnel files supports an employer's insistence on seeking to maintain the confidentiality of sensitive information that may be included in personnel records, such as medical and tax information. Additionally, an employer should insist that a party seeking discovery of personnel records enter into a confidentiality agreement or seek a protective order from the court. This is the accepted remedy to protect the privacy concerns of the employer and the employees in most cases relating to requests for personnel records.

Conclusion

Whether personnel records are admissible into evidence is a different issue than whether they are discoverable, and this will always be a fact-intensive inquiry. Personnel records from non-party employers may be considered inadmissible propensity evidence under Rule 404(a), (See Ireh v. Nassau University Medical Center, 2008 U.S. Dist. LEXIS 76583, 2008 WL 4283344, at *5 (E.D.N.Y. 2008) (attack on plaintiff's credibility by introducing evidence of his character in another employment setting likely inadmissible propensity evidence under Rule 404(a)) particularly where a defendant wants to use these records to attack plaintiff's credibility by demonstrating that the plaintiff behaved in a certain manner at a prior employer.

Philip M. Berkowitz is a shareholder of Littler Mendelson and co-chair of the firm's U.S. international employment law and financial services practices. James Horton is an associate at the firm.