New Jersey Case Law Balances Discovery and Employee Rights

Employment discrimination litigation and discovery of relevant employment records in New Jersey present a unique legal challenge, especially when it involves a plaintiff’s current workplace.

New Jersey courts have developed a nuanced approach to balancing the need for plaintiffs’ employment records in proving or defending against claims of discrimination with the imperative of protecting individual privacy.

New Jersey’s legal framework for employment discrimination cases is grounded in both federal statutes and the New Jersey Law Against Discrimination. The NJLAD is one of the country’s most comprehensive anti-discrimination laws, providing broad protections against employment discrimination.

The state’s rules of civil procedure generally align with the Federal Rules of Civil Procedure and provide for broad discovery of non-privileged documents that are relevant to the claims or defenses and proportional to the needs of the case. The same concepts hold true for non-party subpoenas, which are often required for this type of discovery.

Discoverability of Employment Records

New Jersey courts have consistently underscored the relevance of a plaintiff’s employment records in discrimination litigation, recognizing that such documents can be critical in establishing:

• A plaintiff’s work history
• Prior workplace complaints
• Earnings and compensation
• Performance, attendance, or disciplinary issues
• Prior and current requests for workplace accommodations when litigating disability discrimination claims

Given the sensitive nature of these records, which often contain personal information such as salary details, performance evaluations, disciplinary records, and medical information, the relevance of such information is weighed against the plaintiff’s privacy rights.

Relevance and Privacy

The discovery of employment records in discrimination cases involves a balancing test, weighing the need for the information against privacy interests, the burden of production, and the potential for retaliation.

Courts often require a showing that the requests are narrowly tailored to what is directly relevant to the claim or defense. For example, a request for all records related to a plaintiff’s current or former employment is likely to be rejected, while a request for compensation information would be upheld.

Similarly, requests for entire personnel files may be denied, while requests about specific items such as medical records for a reasonable accommodation request in a disability discrimination case, are more likely to be upheld.

For example, in Boykins v. inVentiv Com. Servs., defendants subpoenaed plaintiff’s current employer seeking the plaintiff’s entire employment file. The current employer refused, and the defendant moved to compel. The court denied defendant’s application as overly broad in seeking the entire personnel file and intruding on the privacy rights of the plaintiff.

In Berridge v. Nalco, the court denied a plaintiff’s application for a protective order where defendant sought financial information directly relevant to plaintiff’s duty to mitigate. The plaintiff claimed that the mere fact of subpoenaing a current employer would cause “him harm because he fears his employer would terminate him...”

The court rejected such a sweeping proposition, and the plaintiff’s fear of termination fell “woefully short of establishing that the subpoena for his employment records could or would result in termination.”

For practitioners navigating employment discrimination litigation in New Jersey, several strategies can enhance the process:

Precision in discovery requests. Tailoring discovery requests to seek only those records directly relevant to the claims or defenses can help mitigate privacy concerns and reduce the scope for objections.

Articulate a clear rationale. Be precise in explaining why current employment records are necessary for your defense, directly linking them to the litigation’s claims or damages.

Engage in cooperative dialogue. Working with the plaintiff’s counsel to agree on the scope of discovery and protective measures can facilitate a smoother discovery process and minimize disputes.

Consider alternative evidence. Before requesting sensitive current employment records, evaluate whether the same information can be obtained through less intrusive means, potentially avoiding contentious discovery battles.

The intersection of employment records and discovery presents a complex array of issues that require careful navigation. The balance between obtaining necessary evidence and protecting privacy rights warrants a strategic approach.

By understanding the legal principles, challenges, and strategies involved, parties can better navigate the discovery process, ensuring it serves the ends of justice without being viewed by a court as unduly compromising the rights and interests of those involved.

New Jersey’s courts have crafted a judicious approach that recognizes the importance of these records in proving or defending against discrimination claims, while also guarding against unnecessary breaches of privacy. As societal norms and legal standards continue to evolve, New Jersey case law offers valuable insights into achieving fairness and respect for all parties in employment discrimination litigation.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

August W. Heckman III is partner at Morgan Lewis & Bockius, with focus on wage and hour class and collective actions.

Carlyle Edwards-Balfour is an associate at Morgan Lewis & Bockius, and defends and counsels employers.

Write for Us: Author Guidelines