How should we respond to a subpoena for one of our employees’ personnel records?
Q. We recently received a subpoena to produce an employee’s personnel file in connection with a lawsuit. The employee is a party to the lawsuit, but the company is not. Do we have to comply with the subpoena? Should we tell the employee about the subpoena?
A. A subpoena is a court order, and as such you must comply with it. However, sometimes subpoenas may order employers to turn over documents that are privileged or may require some confidentiality protection (privacy redactions or a protective order from the court).
That’s why it is a good practice to consult with your employment attorney to conduct a legal review of the records before you produce them. Your lawyer can help you protect privilege, privacy and other legal rights.
There is no mandatory requirement to notify a private-sector employee about the request or subpoena for personnel file information, unless an employment contract, company policy or a past practice of doing so might create such an obligation.
Nevertheless, since court rules normally require the party requesting or subpoenaing the information to also give notice of the request or subpoena to the other parties in the case (and ostensibly the employee), most employers will opt to notify the employee of the subpoena. That way, the employee can confer with his or her attorney, who can then notify the court, the requesting party and the company (and its employment attorney) of any appropriate objections or concerns.
Your employment attorney can also confer with the attorneys in the underlying lawsuit to discuss the scope of the records request and any other associated legal questions or concerns.