Court Quashes Subpoenas to Obtain Prior Employment Information to Support “After Acquired Evidence Defense” in Race Discrimination Case

In a recent Order issued in Walker v. H & M Henner & Mauritz LP, 16-cv-03818 (filed 9/12/16), the court granted the plaintiff’s motion to quash subpoenas that defendant proposed to serve on plaintiff’s former and current employers and schools she attended, in order to support its “after acquired evidence” defense.

Defendant argued that “during the course of its hiring process, it reviewed two different versions of Walker’s resume and there are inconsistencies between the education and experience listed in them” and that there were other documents it had that suggested “that Walker may have embellished her work experience.”

SDNY Magistrate Judge James Cott explained why the discovery was not warranted under the amended Federal Rules of Civil Procedure, and in particular the “proportionality” requirement of FRCP 26(b)(1):

The showing that H & M has made is insufficient to justify these subpoenas. A former employer’s “belief” that it “may” have an after-acquired evidence defense, without more than the information proffered by H & M, docs not warrant the son of discovery proposed here. While the Supreme Court recognized the after-acquired evidence defense in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 362 (1995) [link], it cautioned against the potential for abuse of the discovery process by employers seeking to limit their liability through such a defense. The Court pointedly observed: The concern that employers might as a routine matter undertake extensive discovery into an employee’s background or performance on the job to resist claims under [civil rights laws] is not an insubstantial one, but we think the authority of the courts … to invoke the appropriate provisions of the Federal Rules of Civil Procedure will deter most abuses. Courts have relied on this language in McKennon in holding that the after acquired evidence defense cannot be used to pursue discovery in the absence of some basis for believing that after-acquired evidence of wrong-doing will be revealed.

The concerns expressed in McKennon are even starker given the amendments to the Federal Rules of Civil Procedure in 2015. [T]he amendments to Rule 26(b)(1) now allow discovery of “any nonprivilcged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit. … [T]he amended Rule is intended to encourage judges to be more aggressive in identifying and discouraging discovery overuse by emphasizing the need to analyze proportionality before ordering production of relevant information. …

In this light, the Court concludes that the information sought is not “proportional to the needs of the case.” The issue presented here is whether H & M’s actions directed toward Walker in its training program over a five-month period that ultimately led her to leave the company were racially discriminatory or based on valid considerations. Walker’s prior work history has nothing to do with that issue. In addition, to the extent H & M believes that Walker may have been misleading during the hiring process about her prior experience, H & M does not explain why its vetting process and “due diligence,” if any, in its contact with Walker’s prior employers would not have revealed the very information that it now purports to seek through these subpoenas. Finally, if H & M was concerned about the alleged inconsistencies in Walker’s resume, which it acknowledges that it obtained during the course of the hiring process, it would presumably have fol lowed up at that time and not have hired her into its training program.

The court therefore granted plaintiff’s motion to quash the subpoenas.