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Personnel Files of Non-Party Employees May Be Discoverable Under Employment Claims

Posted on September 29th, 2017

Follow ILS for future e-discovery blog postsIn Tolston v. Charles Drew Health Center, No. 8:16CV176, (D. Neb. June 30, 2017), Plaintiff sued her former employer for terminating her employment in violation of federal and state laws prohibiting discrimination based on sex and retaliation.

Monique Tolston (“Plaintiff”) worked as a family practice physician for Charles Drew Health Center (“Defendant”) from 2008 until her termination on August 7, 2015. Plaintiff alleges that in November 2014, she reported an unlawful medical practice to Defendant’s Medical Director, Gregory Ochuba, and as a result, in December 2014, she was reprimanded for her report and received a performance evaluation rating her performance below satisfactory in several categories. Plaintiff alleges in August 2015 she was terminated without notice, violating her employment agreement. Plaintiff alleges Defendant’s alleged reasons for firing her (including tardiness, unexcused absences, history of failure to participate in mandatory meetings, unacceptable and unprofessional behavior, failure to meet productivity goals, and patient complaints) were pretext for gender discrimination and retaliation.

The parties have filed the instant motions to compel disclosure of certain written discovery and further depositions. Defendant represented to the Court that it filed its motion to preserve its rights; Defendant states that Plaintiff’s counsel previously agreed to produce supplemental answers to interrogatories and production of documents, but has not yet done so. Therefore, the Court grants Defendant’s Motion and order Plaintiff to supplement the outstanding discovery requests within 14-days of this order, assuming she has not already done so.

Remaining before the Court are Plaintiff’s discovery motions. Plaintiff seeks an order compelling Defendant to answer interrogatories and respond to requests for production of documents regarding any disciplinary action, tardiness, patient and staff complaints, and other performance evaluation information for other physicians employed by Defendant. Plaintiff also seeks an order compelling an additional Rule 30(b)(6) deposition of Defendant because the deponents were unprepared to answer the topics noticed by Plaintiff.

Defendant maintains its objections to Plaintiff’s requests, which seek the personnel files of physicians employed by Defendant between 2010 and August 2015. Defendant argues production would violate those employees’ privacy rights. Federal courts, including this Court and the Eighth Circuit, have found that personnel files of non-party employees may be relevant and discoverable in cases involving employment claims.

The Court finds that Plaintiff has sustained this burden. Plaintiff requests information relevant to her claim that Defendant’s reasons for her termination were pretext for discrimination. Plaintiff’s request is directed to discovering information regarding similarly situated non-party physicians employed by Defendant and supervised by the same Chief Medical Officer between 2010 and Plaintiff’s termination in August 2015.

Plaintiff’s Request for personnel files stated information related to disability, physical health, and beneficiary or banking information should be excluded. Any information regarding patient or staff complaints, absences, performance evaluations, tardiness, investigations, or other disciplinary action is plainly relevant to Plaintiff’s claims of discrimination. Therefore, the Court will compel Defendant to produce to Plaintiff the requested personnel files, with appropriate private personal information redacted, within 21-days of this Order.

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