Privacy Issues in the Workplace

4. S UBPOENAS FOR P ERSONNEL R ECORDS A frequent question for employers is whether to release personnel records pursuant to a subpoena or other form of discovery demand. The Legislature has addressed privacy concerns relating to producing confidential records of others pursuant to the judicial subpoena process. California Code of Civil Procedure section 1985.3 sets forth some specific employee notification requirements. These requirements are generally applicable to public sector personnel records (except for peace officers, as discussed infra ) when such records are exempt from disclosure under the Public Records Act. 406 Section 1985.6 requires a party obtaining a subpoena for personnel records to serve a copy of the subpoena and a “Notice to Consumer” upon the employee prior to the date set for production of the records. The agency official who is the custodian of the records must receive proof of either personal service or timely service by mail of the subpoena and the Notice to Consumer upon the employee otherwise the subpoena is defective and may not be enforceable.

The Notice to Consumer should read substantially as follows:

Sample Notice to Consumer Language

“PLEASE TAKE NOTICE that records concerning you are being sought from (name of the person or entity requesting the documents), named with the subpoena served with this notice. If you object to (name of the person and/or agency in custody of the records) furnishing copies of these records to the parties in this action, you must do one of the following prior to the date set for production:

1. Obtain the written agreement of (name of the person or entity requesting the documents) to cancel or limit the subpoena;

2. File a written motion with the Court to prevent or limit production of your records;

IF YOU CANNOT OBTAIN THE WRITTEN AGREEMENT of the party seeking your records to cancel or limit the subpoena, you should consult an attorney immediately to assist you in protecting your rights of privacy.”

If the consumer records provisions are complied with and a subpoena otherwise appears to be properly issued and prepared, and if the employee does not object within the statutory period, an employer can usually legally release the records. However, in recognition of the privacy issues discussed above, it is advisable to consult with an attorney prior to releasing employee personnel records pursuant to a subpoena.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 117