Obtaining Employment Files of Employee Witnesses

If a witness works for a corporate litigant, is that witness’ employment file discoverable?  This issue was one of several that arose in A.Hak Indus. Servs. B.V. v. TechCorr USA, LLC, a contract and intellectual property dispute.[1]  The defendant served this request for production:

All documents concerning and/or related to the hiring, supervision, discipline, compensation, termination and/or separation of each person that is listed as a witness and/or person with knowledge of relevant facts, or may be called as a witness, or is a deponent in this matter, including (without limitation) the person’s personnel and/or HR (human resources) file. This request includes (without limitation) [names], and any other former employees of TechCorr.

The court allowed the request as to certain, specified individuals. It seems some A.Hak’s employees may have once worked for TechCorr, which may have been part of the reason for the lawsuit.  TechCorr argued these files were relevant to bias.  That part of the request was denied.  “Numerous courts have declined to order production of personnel files to prove bias because the mere fact that a party employed a witness suffices to do so.”[2]

Something more than mere bias is needed to obtain this information for witnesses.

[1] No. 3:11-cv-74, 2014 U.S. Dist. LEXIS 121839, 2014 WL 4352336 (N.D.W. Va. Sep. 2, 2014).

[2] S.E.C. v. Nadel, No. 11-215, 2012 U.S. Dist. LEXIS 53173, 2012 WL 1268297 (E.D.N.Y. Apr. 16, 2012) (declining to order discovery into compensation of party’s employee as fact of employment sufficed); Wis. Elec. Power Co. v. Union Pac. R.R. Co., No. 06-C-515, 2008 WL 934431 (E.D. Wis. Mar. 31, 2008) (denying discovery of compensation of expert witnesses who were a party’s full-time employees as fact of employment sufficed to prove bias); Haynes v. Shoney’s Inc., No. 89-30093, 1991 U.S. Dist. LEXIS 20612, 1991 WL 354933 (N.D. Fl. Sept. 27, 1991) (denying motion to compel production of files for fifteen employees as “the fact of employment alone is sufficient to demonstrate bias”).