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Is a Protective Order Warranted for Third Party Subpoenas if Plaintiff Produces the Data?

Posted on June 2nd, 2014

In an employment law case where a plaintiff seeks back and future earnings, mitigation of damages will be a major issue. If the plaintiff could have earned income with reasonable diligence, then the claim for future pay would be mitigated. But can a defendant subpoena a third party employer or prospective employer to gain such information? That was one discovery issue in the case Zeller v. South Central Emergency Medical Services, Inc., Civil Action No. 1:13-CV-2584 (M.D. Penn. May 20, 2014).

After his previous employment with Defendant ended, Plaintiff alleged violations of FMLA and retaliatory discharge. As part of Defendant’s discovery requests, the former employer sought to subpoena prospective employers he applied to as well as his current employer on the issue of mitigation of damages. Plaintiff objected and sought a protective order precluding the subpoenas from issuing.

The court recognized that post-employment records, including job applications, disciplinary records, resumes, pay and benefit data, etc., in an employment case are relevant on the issue of mitigation of damages. However, the court also recognized that individuals have “legitimate privacy interests” regarding new employment, and it was cognizant of the negative effects that disputes with past employers may have on prospective or present employers.

The court denied the protective order, but with a caveat. The court allowed 30 days for Plaintiff to respond to the ESI request with the relevant information regarding his current employment. This included: the job description and title, a description of duties, hours worked per week, and all compensation including salary and benefits. If Plaintiff could not or would not provide this information in full from his current employer, than the subpoena would issue as written. Regarding the prospective employers for jobs he did not accept, the court did not see the impact on Plaintiff and therefore, allowed such subpoenas to be issued.

ILS – Plaintiff eDiscovery Experts

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