New Federal Rule Change Helps Quash Discovery as to Former Employers, Other Lawsuits.

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For decades, a tried and true method of discovery by defendants in federal employment litigation has been to seek the personnel files of the plaintiff from his or her former employers – hoping to find those negative nuggets that can doom  or at least hobble — a plaintiff’s case or credibility. Likewise, plaintiffs included a standard request for all documents and details regarding any prior employment litigation against the employer, hoping to find evidence of a systemic pattern of behavior by the employer or the managers involved.

The previous, liberal standard for such discovery in federal court allowed parties to broadly seek any information “reasonably calculated to lead to the discovery of admissible evidence.” However, on December 1, 2015, extensive changes to the Federal Rules of Civil Procedure took effect. Those amendments nullify the old standard and expand a preexisting but largely ignored “proportionality” standard to be used by courts in deciding questions about the scope of allowable discovery in cases brought in the federal courts. The amended rules are already narrowing discovery in labor and employment litigation.

Notably, in Henry v. Morgan’s Hotel Group, U.S. Magistrate Judge James Cott (S.D.N.Y.) quashed subpoenas served on former employers of the plaintiff who claimed discrimination based on race and sexual orientation. Judge Cott held that the subpoenas could harm the plaintiff’s ability to find new employment by spreading the fact that the plaintiff had sued a former employer.  Moreover, the subpoenas violated the spirit of the recent changes in the federal rules because the discovery sought must now be “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to the relevant information, the parties resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit,” the court noted.

Judge Cott explained that the new rule is designed to discourage overuse of discovery by analyzing “proportionality” before ordering discovery.  In the Henry case, the plaintiff’s “prior employment has little if any bearing” on whether the defendant discriminated against the plaintiff at Morgan’s Hotel Group, yet could harm him substantially in the job market.

Similarly, but on the other side of this proportionality coin, in Torcasio v. New Canaan Board of Education (D. Conn. Jan. 25, 2016), a federal court blocked extensive discovery by the plaintiff of prior lawsuits against the employer, applying the same new “proportionality” factors.

Bottom line: the ground has shifted in federal court discovery disputes. Management and plaintiffs’ lawyers need to focus on the proportionality factors when drafting discovery to justify many of the standard requests previously sought in employment cases.  Conversely, they will be able to invoke the new standard to shield their clients from over-reaching and harassing discovery that appears to amount to nothing more than a “fishing expedition.”

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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