Privacy Issues in the Workplace

interest in preserving confidential information outweighs the interest of a private litigant in obtaining the confidential information. 402

El Dorado Savings & Loan Assoc. v. Superior Court 403 Plaintiffs, former female employees of El Dorado Savings & Loan, sought discovery of personnel records of a male employee, Morris, who was not a party to the lawsuit. Plaintiffs alleged that during the course of their employment, they were discriminated against on the basis of gender and age. Plaintiffs contended that disclosure was necessary to the prosecution of their discrimination case, since Morris was the only male employee working in the same capacity as plaintiffs and had allegedly received benefits not afforded plaintiffs. The Court of Appeal denied plaintiffs’ discovery request for the disclosure of Morris’ entire personnel file. The Court stated that consideration should be given to whether the information could be obtained by less intrusive means, such as deposing the person. The Court further stated that if no less intrusive means are available, the judge should examine the personnel file and disclose only information he/she determines is relevant to the lawsuit.

Moreover, parties or witnesses also may not discuss confidential information maintained in personnel files that is not otherwise discoverable. For example, a person who has knowledge of the information may not be asked to orally disclose it at deposition or trial. 404 While it is not always clear in advance what would be allowable discovery, there are guidelines and procedures that can be followed depending on whom is making the discovery request and what information is requested.

2. E LECTRONICALLY S TORED I NFORMATION

Public entities that find themselves parties to litigation should also be wary of those rules of civil procedure that permit discovery of “electronically stored information.”

The Federal Rules of Civil Procedure that may affect information retention and storage policies of public entities. 405 The rules require each party to litigation to conduct an exhaustive search of all electronically stored information “in the possession, custody, or control of the party” and to disclose this information, except for privileged information, “without awaiting a discovery request.” Disclosure is not limited to hard copies of emails or other electronically stored and transmitted information, and may include back-up tapes, employee PCs, and smartphones as well as electronic records of conversations through voice mail, text or instant messaging. While entities are protected from sanctions under the rules for deleting email and other electronically stored information as part of a “routine, good-faith operation,” what constitutes a “routine, good- faith operation” has not been defined under the rules.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 118