Discovery of employee personnel files

Discoverability of Personnel Files

In D’Angelo v. U.S., a medical malpractice and negligent hiring action against Veterans Administration Hospital, the court allowed the plaintiff to discover specific information contained in three doctors’ personnel files, specifically, “any and all records of patient complaints, disciplinary action, staff review of performance, malpractice actions (actual or threatened), job applications, review of job applications, performance evaluations, or other records showing the suitability or non-suitability of these three doctors.” D’Angelo v. U.S., 588 F. Supp. 9, 10 (W.D.N.Y. 1983).

In In re Lavernia Nursing Facility, Inc., the plaintiff’s heir brought suit against a nursing home, alleging that the patient had been sexually assaulted by a sixteen-year-old, unlicensed nurse aid employed by the nursing home. The plaintiff sought the personnel file of the nurse aid. The court of appeals of Texas upheld sanctions against the nursing home for failing to produce the “entire” personnel file. The court also held that “personnel file” means every record kept on the employee in question even though a “file” may not be kept together in the same location. Id.

Similarly, defendant health care organizations have been found to lack standing to assert their employees privacy interests in requested personnel files. When faced with an objection based on the privacy rights of the employee, courts have rejected such objections requiring the production of employment and personnel records. In the seminal case of Alterra Health Care Corp. v. Shelley, the Court held that an assisted living facility lacked standing to deny a discovery request of personnel files by asserting the constitutional right of privacy of employees. Alterra Healthcare Corp. v. Estate of Shelley, 827 So.2d 936 (Fla. 2002). The court specifically disapproved Beverly Enterprises-Florida, Inc. v. Deutsch, 765 So. 2d 778 (Fla. 5th Dist. Ct. App. 2000), which had held that a private employer had standing to assert the privacy rights of its employees.

In another case, the court held that a hospital did not have standing to assert the privacy rights of its nurses: A mere employee/employer relationship is not the kind of special relationship necessary for third party standing. North Florida Regional Hospital Inc., v. Douglas 454 So. 2d 759 (Fla. 1st Dist. Ct. App. 1984); See also, e.g. Humphreys v. Caldwell, 881 S.W.2d 940 (Tex. App. 1994) (a bad faith and unfair settlement practices case in which the Court affirmed the trial courts ruling that an insurance company’s conclusory allegations that its personnel files were private did not impose any duty on the trial court).