Nyemaster Goode, P.C.

Personnel Files Deemed Unnecessary, Irrelevant

August 17, 2010

DES MOINES – In Comito v. ChildServe, Inc., Law No. CL 111557, Iowa District Court for Polk County (June 2, 2010), Plaintiff alleged that the legitimate economic reasons proffered for her termination from her position as Manager of ChildServe's Homecare division were a pretext for a wrongful retaliatory discharge in violation of public policy. In response to Plaintiff's document requests, ChildServe produced the entire contents of Plaintiff's personnel file, and subject to a protective order, any disciplinary documentation and performance reviews contained in the personnel files of the decision-maker and all other employees terminated at the same time as Plaintiff. Plaintiff then sought to compel production of the entire contents of these personnel files, as well as those of some thirty other employees who "were under the same decision maker as [the Plaintiff] during" the Plaintiff's term of employment.

Plaintiff argued, among other things, that the protective order was sufficient to protect the employees from improper use of the information. The decision maker was an employee at the Director level who had two other divisions of ChildServe reporting to her. While initially Comito sought personnel files from all employees in all divisions that reported to the decision maker, she limited her request at oral argument to all employees in the Homecare division. Nevertheless, Comito was seeking production of the entire contents of personnel files of some 30 employees, regardless of whether the employee had any knowledge about or relationship to the events alleged in the lawsuit.

ChildServe argued that disclosing the sensitive and personal information contained in a personnel file is a highly and often unnecessarily intrusive act, whether or not governed by a protective order. In denying the motion, the Court held that Comito was "unable to state with any degree of specificity" what other types of information that could be in a personnel file she was seeking and why she was seeking it from the files of these other employees. The Court reasoned that if the plaintiff wants to ask for information about other employees who were terminated to see if they were terminated for engaging in conduct similar to that alleged by Comito, "she may do so with some targeted discovery." The Court concluded "a party ought to be able to at least articulate what type of documents or information they seek before engaging in a pure fishing expedition, especially of the personnel files of individuals who have nothing to do with the lawsuit."

This decision serves as a cautionary warning to plaintiffs not to put the cart before the horse. Before documents must be produced pursuant to a protective order, the documents themselves must be relevant. Protective orders are not the answer to satisfy the desires of over-reaching plaintiffs and their attorneys to snoop through irrelevant confidential personnel records of employees who have marginal, if any, relationship to the litigation. In some cases, strategic concerns and the facts of the particular case may mean that the employer wants to produce the contents of personnel files, subject to a protective order. However, in the absence of such considerations, Judge Staskal's decision represents a common sense approach to the discovery of the contents of personnel files in this climate of increasing sensitivity to the protection of private information.

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