Sometimes, during an employment lawsuit, the employer will subpoena records from employers before the defendant employer even hired the plaintiff. What relevance would employment records have which date to before the job where the discrimination occurred? Maybe not much. Some defense lawyers seek prior records as much to intimidate the employee as to obtain actual, usable evidence. In Cunningham v. Concentrix Solutions Corp., No. 20-CV-00661, 2021 WL 425099 (E.D. Tex. 2/8/2021), the employee sued saying he had been passed over for promotion for discriminatory reasons. The employer issued a subpoena seeking job information from Alorica, Cuningham’s employer before Concentix.

A few days later, the plaintiff responded in kind. Mr. Cunningham, the plaintiff issued a subpoena seeking prior job information for the employee who was selected for the promotion over Cunningham. Thus, there were dueling subpoenas, both seeking information from employers other than Concentrix. Without engaging in a lot of analysis, the court essentially allowed both subpoenas. The court notes that this is discovery and discovery is generally broad. The court did note that the information sought by Concentrix does pertain to Cunningham’s qualification for the promotion.

The court issued two decisions, both dated Feb. 8. One decision addresses the employer’s subpoena. The second address the employee’s subpoena. See the Feb. 8 decision regarding the employee’s motion to quash here. The second Feb. 8 decision regarding the employer’s motion to quash is here.