Monthly Archives: January 2013

One of the most common disputes to arise during an employment lawsuit is access to your private medical documents. The employer who’s being sued (or more accurately, their attorneys) routinely insist that, by filing a lawsuit and alleging emotional distress, you’ve voluntarily put your health and all related records “at issue” such that it’s up for grabs during discovery.  This, however, is not always true, and you should be aware of your constitutional right to privacy while engaged in a lawsuit.

“Give Us Everything” 

Discovery, of course, refers to the window of time between filing your lawsuit and trial (usually 8-10 months) where both sides get to demand relevant documents from each other and also demand that certain questions be answered truthfully. As a general matter, a party is “entitled” to discover any documents as long as the request is “reasonably calculated to lead to the discovery of admissible evidence.”

Historically, this is a very low bar to satisfy and attorneys can get their hands on a wide range of documents with very little justification. California laws and public policy also support this notion, as courts feel that the more information attorneys have, the more likely they can make informed decisions and settle the case. With that being said, an attorney’s favorite term of art during discovery tends to be “any and all.” For example, your attorney will probably ask the employer/defendant for “any and all written complaints of discrimination by other employees.” This type of demand is permitted during an employment lawsuit because evidence of other employees’ complaints would support a discriminatory pattern or motive, thus supporting your claim of discrimination.

The problem, however, arises when the employer serves a subpoena on your doctors and therapists demanding “any and all” of your medical records. This type of demand is intentionally broad and is designed to encompass every known type of medical document, even if they have nothing to do with your lawsuit. In a recent case, for example, the defendant/employer tried to demand all medical documents from every physician our client had seen over the past five years. The demand included private medical documents from our client’s therapist, general doctors, and even her dentist and gynecologist.

Requests like that are highly intrusive to say the least, but it’s important to know that private medical records are highly protected under California law, even when you’re involved in a lawsuit. More specifically, attorneys have to meet a much higher legal burden to get their hands on that kind of sensitive material, even when you put your health “at issue” in your complaint.

Unfortunately, some attorneys take a stance that, if the documents won’t affect your case, then who cares, just let them have it, right? Of course not. What still matters is your constitutional right to privacy and your attorney should take the appropriate steps to protect it.

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