Here’s a significant post-rules-amendments discovery decision out of the Xarelto MDL. In In re Xarelto (Rivaroxaban) Products Liability Litigation, 2016 WL 311762 (E.D. La. Jan. 26, 2016), the court (Fallon, J.) cited both new Rule 26’s heightened proportionality emphasis, as well as privacy issues, in rejecting the plaintiffs’ discovery demand for the personnel files of a large number of the defendant’s employees. This was not a demand for custodial files, call notes or anything peculiarly relevant to the litigation – but for personnel files.
No way, José. Not after December 1, 2015.
A personnel file, unlike a work-related custodial file, is not the kind of thing that any company wants its litigation opponents rummaging through:
[T]he personnel file is not maintained by the employee. The personnel file is maintained by the Human Resources department of an employer, and is likely to contain confidential employer evaluations which the employee may have never seen. The personnel file also may include other sensitive information, such as salary, information concerning physical or mental health issues, alimony and child support garnishment, tax records, and drug test results.
Xarelto, 2016 WL 311762, at *1 (citations and quotation marks omitted).
Plaintiffs claimed that personnel files were relevant to “rush to market” and “employee” bias. Id. Defendant argued that these files were “not relevant to the claims or defenses in this case” – the post-December 1, 2015, discovery standard – and also that “privacy” outweighed the plaintiffs’ “broad non-particularized requests.” Id. Plaintiffs demanded “performance reviews, self-reviews, annual compensation information, incentive information, bonus information, post-employment information, the reason for the employee's termination (if applicable), and the existence (or lack thereof) of a non-disparagement clause.” Id. at *5 n.4. They wanted these documents for all employees being deposed, including sales representatives. Id. at *2. Plaintiffs claimed they had received similar information in three prior MDLs. Id.
Not this time.
The court held:
[A] plaintiff in a products liability MDL cannot discover a non-party employee’s personnel file without an individualized showing of relevancy, proportionality, and particularity. Plaintiffs have failed to make this showing in both their memorandum and proposed pretrial order. Rule 26(b) commands that all discovery be both relevant and proportional.
Xarelto, 2016 WL 311762, at *4. Under Rule 26(b) the “specific discovery test” for personnel files, must be conducted “on a witness-by-witness basis.” Id. The plaintiffs’ broad request for all witnesses’ personnel files “fails to demonstrate sufficient relevancy and particularity.” Id.
Both privacy and “thorny issues of corporate policy” weighed against generalized discovery into personnel files. “The privacy concerns implicated by a personnel file are distinct from those presented by a custodial file, because they are far more likely to contain personal, embarrassing material.” Id. As a matter of corporate employment policy:
[M]any files in a personnel file are not intended to be shared with an employee or disclosed outside of the company. A deponent-employee may be embarrassed or upset by the production of a critical performance evaluation or self-evaluation, and allowing personnel records to be per se discoverable following a generalized showing of “rush to the market” conditions or a need for evidence of bias would eviscerate any semblance of protection.
Id. So plaintiffs are not able to ambush opposing employees at their depositions with adverse information calculated to make the deponents turn on their employers.
The “importance of the information sought to the plaintiff’s case” was not strong enough to warrant discovery. Id. “[I]t is not clear that this information is sufficiently relevant and particularized to a ‘rush to the market’ theory of liability or employee bias. The Court has been given no information about the targets of the [plaintiffs’] discovery request for personnel files, except that [plaintiffs] intend to depose them and that they are currently or were at one time employees of Defendants.” Id. After a discussion of relevant case law (all of it outside the realm of product liability), the court concluded:
With respect to the personnel records, a one-size-fits-all discovery request for eight separate categories of documents for all deposed witnesses in this matter is insufficient. . . . Plaintiffs must show relevancy and particularity on a witness-by-witness basis.
Xarelto, 2016 WL 311762, at *5.
While it is unclear in Xarelto exactly how much the discovery rules amendments, as opposed to peculiarities of Fifth Circuit precedent, influenced Judge Fallon not to follow the three other MDLs on discovery of personnel files, the new language clearly played some role, since both proportionality and the new, less expansive scope of discovery were quoted in Xarelto. Let that be a lesson to everyone on our side that, just because outrageous discovery was previously allowed, that alone is no reason for allowing the outrage to persist under the new discovery rules.