THE HILLSBOROUGH COUNT Y BAR ASSOCIATION TAMPA, FLORIDA | DECEMBER 2010 - JANUARY 2011 Lawyer VOL. 21, NO. 3 TAKING A STAND AGAINST SUBPOENAS TO FORMER EMPLOYERS Labor & Employment Section Chairs: Tammie L. Rattray, Ford & Harrison LLP, and Steven M. Bernstein, Fisher & Phillips, LLP

oppose these after-acquired subpoenas. evidence defense. The most This defense common allows employers arguments to use evidence opposing these of wrongdoing subpoenas on the part of a are based on plaintiff that the overbreadth, employers learn relevance, of after-the-fact and that the to limit damages recurring practice information sought awardable to we see over and over is not reasonably plaintiffs.2 Many again as plaintiffs’ calculated to lead courts will not A employment lawyers to discovery of permit defendants when litigating employment admissible The key to remember to obtain this discrimination cases is the evidence. For in evaluating information, defendants’ attempt to use example, when especially early non-party subpoenas to obtain a defendant non-party subpoenas on in discovery, irrelevant, confidential and broadly requests is whether the without some an employee’s pre-existing private personnel information information actually from plaintiffs’ former employers. entire personnel factual basis Not only do plaintiffs find these file from a former sought will lead to showing that subpoenas overly intrusive and employer, this admissible evidence. after-acquired an invasion of privacy, but they is exceedingly evidence exists.3 fear that these subpoenas interfere overbroad and The mere with their future job opportunities. typically seeks possibility or Defendants use non-party irrelevant information. In these belief by defendants that after- subpoenas to pry into plaintiffs’ situations, undoubtedly plaintiffs acquired evidence may exist is pasts without regard to relevance should attack the subpoena.1 not sufficient. of the information sought. One specific battle counsel Another time to challenge a It is important for all plaintiffs’ should fight regarding non-party subpoena to a former employer attorneys to see through these subpoenas to former employers is when it seeks inadmissible classic fishing expeditions is where a defendant seeks character evidence, such as a and oppose these tactics with information regarding past plaintiff’s previous discipline full force. Depending on what wrongdoing (i.e., lying about or history or complaints and/or information is sought in the non- misrepresenting information on charges of discrimination against party subpoenas, plaintiffs have their employment application and former employers. The rules of strong, persuasive arguments resumes). Defendants will claim with which to arm themselves to this information supports their Continued on page 57

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Continued from page 56 then plaintiffs should stand firm 3 Maxwell v. Health Center of Lake and vigorously defend against City, Inc., 2006 U.S. Dist. LEXIS 36774 evidence prohibit the admissibility these subpoenas. (M.D. Fla. 2006); Premer v. Corestaff of character evidence to show Of course, plaintiffs, just like Services, L.P., 232 F.R.D. 692, 693 that a person acted in conformity defendants, have an obligation (M.D. Fla. 2005); Preston v. American with that specific character to confer in good faith to resolve Express Case, No. 3:00-cv312-J-w5TJC trait. When an employer seeks discovery disputes before seeking (doc. 17, n. 3); Cute v. ICC Capital information regarding a plaintiff’s court intervention. Nonetheless, Management, No. 6:09-cv-01761-ACC- previous complaints or charges plaintiffs’ attorneys should take DAB (doc. 52, pp.5-7). of discrimination, the motive is great care in reviewing non-party 4 Fed. R. Evid. 404; Outley v. City usually to show that the plaintiff subpoenas to former employers of New York, 837 F.2d 587, 592 (2d Cir. is litigious, which is improper and zealously represent their 1988); Mathis v. Phillips Chevrolet, Inc., character evidence.4 Moreover, employee plaintiffs by applying 269 F.3d 771, 775-775 (7th Cir. 2001). a subpoena seeking the previous these legal arguments to oppose 5 Fed. R. Evid. 404; Chamberlain v. disciplinary history of a plaintiff such subpoenas. Farmington Savings Bank, 2007 WL with a former employer also forms 2786421 (D. Conn. the basis of improper character 1 Middleton v. Orange Park Medical 2002); Maxwell, supra, evidence.5 The key to remember Center, Inc., No. 3:00-cv-876-J-21HTS n. 3. in evaluating non-party subpoenas (doc.14, pg. 2); Lopez v. State of is whether the information actually Florida, et al, No.3:00-cv-01188-RWN Author: Yvette D. sought will lead to admissible (doc. 26, pp.2). Daniels-Everhart, evidence. If the subpoena seeks 2 McKennon v. Nashville Publishing Law Offices of inadmissible character evidence, Company, 513 U.S. 352, 362-363 (1995). Cynthia N. Sass, P.A.

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