In Rubin v. Morrison & Foerster, No. 155986/2024, 2026 WL 2923238 (N.Y. Sup. Ct. Sep. 17, 2026), an employment discrimination case, the court discussed and applied the “after acquired evidence doctrine.”
In sum, plaintiff alleges that he was subject to discrimination based on his disability (including failure to accommodate and termination). This decision concerns plaintiff’s motion to quash subpoenas served on four former employers. Plaintiff argues that his complaint does not place his former employment at issue in this case. Defendants argue, inter alia, that plaintiff’s prior employment history is pertinent to their “after-acquired evidence” defense, reasoning that “if plaintiff misrepresented his prior experience, then it could provide an independent basis for the adverse actions in this case.”
From the decision:
An application to quash a subpoena should be granted only where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry. It is the one moving to vacate the subpoena who has the burden of establishing that the subpoena should be vacated under such circumstances” (Matter of Kapon v Koch, 23 NY3d 32, 38-39, 988 NYS2d 559 [2014]).
The Court grants the motion. As noted above, this Court dismissed the counterclaims which were based upon defendants’ theory that plaintiff made up the incident in question and found that the inquiry here concerns plaintiff’s performance as an attorney working for defendants. Defendants’ rationale for wanting records from plaintiff’s past employers do not justify the overarching and broad inquiry into plaintiff’s previous employment history.
Defendants’ initial justification–that plaintiff has to establish he was qualified for the position–glosses over the fact that defendants hired plaintiff. Defendants already made the decision that plaintiff was qualified when they hired him. That is, defendants made an assessment, after receiving some amount of application materials and doing their pre-employment investigation, that plaintiff was qualified to be an attorney with defendants. To seek records to suggest that plaintiff lacked the necessary skills or qualifications is irrelevant, in this Court’s view, because defendants unquestionably hired plaintiff after reviewing his qualifications and there is no assertion that he lied about meeting the basic qualifications (such as being admitted to the bar, graduating from law school or working as a lawyer).
If, hypothetically, plaintiff had some sort of prior misconduct while working for a previous employer, that would have no bearing on plaintiff’s discrimination claim because those actions were not part of defendants’ decision to hire and then terminate plaintiff — there is no claim that he was fired because he lied on his application. Rather, defendants claim they fired plaintiff due to his work performance with them and so how he performed at prior firms is irrelevant.
Defendants’ insistence that they need this information to consider other similarly situated attorneys who received bonuses is also not reason to allow this discovery. There are plenty of attorneys who work for defendants and it is not clear how plaintiff’s work years ago would influence his ability to earn a bonus from defendants.
With respect to his potential future earnings, again, plaintiff’s prior employment history is of no moment because defendants hired him. It is simply too big of a leap to insist that prior employment records would somehow influence plaintiff’s potential future earnings where they apparently did not play any part in plaintiff’s hiring and where there is no indication that plaintiff lied about having these prior jobs.Defendants’ final justification–the after-acquired evidence affirmative defense–presents a closer question. This affirmative defense applies to “a determination of damages and what other remedies to impose” (McCarthy v Pall Corp., 214 AD2d 705, 705, 625 NYS2d 296 [2d Dept 1995]). It is the theory that, basically, the plaintiff in a discrimination lawsuit would have been fired anyway based on information discovered after his or her termination from employment. The problem for defendants is that they do not offer anything beyond a vague assertion of misconduct or misrepresentation to explain the need for this discovery. That is, they do not offer any specific details concerning what information they expect to find in the prior employment records.
Instead, they speculate that because they found plaintiff’s skills to be lacking, they suspect that he may have misrepresented the extent of his expertise when applying for his job with defendants and that could have led to his termination. Put another way, they suggest that because he did not perform well, he must have oversold his skills and they want to question former employers now to catch what they missed in the pre-hiring stage. However, the individual capabilities of an attorney are often a subjective evaluation and so that even if the plaintiff was not as good of an attorney as defendants expected or that he represented, that is not the type of misrepresentation that falls within this doctrine.In this Court’s view, “he was not as good as we hoped” is not the type of after-acquired evidence that this type of affirmative defense typically encapsulates (see id. [noting that defendants submitted evidence of plaintiff’s fraud]). Defendants merely claim he was an underperformer. That plaintiff, in defendants’ estimation, may not have possessed the required skills is too malleable of an argument to invoke this doctrine in support of a broad exploration from four of his past employers.
Defendants have not pointed to anything that plaintiff did while under their employ to make them suspicious enough that a former employer could shed light on the issue. This is not a situation where, for example, plaintiff failed to disclose that he lacked a license to practice law altogether, stole from prior clients, was violent in the office, had a criminal record, or anything remotely similar. Any of those omissions would certainly justify termination by defendants. But that is not what defendants are claiming here. Therefore, the Court is compelled to find that these subpoenas are a fishing expedition in which defendants are hoping to find some sort of evidence, of which they cannot currently articulate, that shows plaintiff was not a good enough attorney (c.f. McKennon v Nashville Banner Pub. Co., 513 US 352, 363, 115 S Ct 879, 887, 130 L Ed 2d 852 [1995] [expressing concern that employers would seek extensive discovery into an employee’s background but observing that the federal statute at issue awarded legal fees, which would probably deter ‘most abuses’]).
The court concluded that this is not a reason to invoke this doctrine and permit this discovery of former employers.