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Management-side lawyers say they do it all the time. Plaintiffs’ lawyers say it’s got to stop. A common defense tactic in workplace litigation, whereby employers subpoena new and prospective employers of the plaintiffs who are suing them, is stirring debate in light of a recent federal court decision. In a sexual discrimination lawsuit pending against Sanofi-Aventis, a federal judge in New York ruled on July 24 that the drug maker could not issue subpoenas to the new or prospective employers of the five female plaintiffs. Bellifemine v. Sanofi-Aventis, No. 1:07-CV-02207 (S.D.N.Y.). The drug maker sought résumés, applications, benefit data, payroll records and references, among other things. The plaintiffs claimed the subpoenas were a fishing expedition — irrelevant to their case — and an intimidation tactic designed to scare them into dropping their suit. The judge suspended the subpoenas and ordered the drug company to use less intrusive means to gather the sought-after information. If those means aren’t successful, however, the judge told the defendants they could repetition the court at a later date for the information. ‘Highly oppressive practice’ “Plaintiffs’ attorneys have got to wake up and realize that this is an unconscionable and highly oppressive practice that has got to stop,” said David Sanford of Washington’s Sanford Wittels & Heisler, who represented the plaintiff in the New York case. Michael L. Banks in the Philadelphia office of Morgan. Lewis & Bockius, who is representing Sanofi-Aventis, said that the sought-after post-employment records are relevant to the defense. For example, he said, it’s important for the defense to know what the plaintiffs told their subsequent employers about why the left their former jobs. Banks said that despite the subpoenas being quashed, “the judge recognized that the information we have sought is relevant to our defense.” He noted that the judge is allowing the defense to approach the court at a later date to seek permission to subpoena future and prospective employers, after it first questions the plaintiffs about their claims. Many management-side lawyers, meanwhile, defend the practice of subpoenaing subsequent employers of plaintiffs. They said information obtained from a new boss, interview notes, résumés, personnel files or job applications could be highly relevant to an existing lawsuit against a company. “It is bordering on malpractice for the attorney not to issue a subpoena for this kind of information,” said management-side lawyer Jeffrey Pasek of Philadelphia’s Cozen O’Connor, who called the New York ruling a “highly unusual result.” Pasek said résumés are important because people often falsify their credentials, he said, or lie about why they left their prior employer. Interview notes can also be helpful, as well as references in the personnel file that could refute allegations the plaintiff has made in a lawsuit. Ashley Brightwell, partner in the labor and employment practice at Atlanta’s Alston & Bird, also defended the practice of subpoenaing records from a plaintiff’s subsequent employers. “In my view, this is done not as an intimidation or harassment tactic, but for the purpose of eliciting useful information in the lawsuit,” she said. Job applications and résumés are especially helpful in wage-and-hour claims, Brightwell said. For example, plaintiffs will sue an employer for improperly classifying them as exempt under the Fair Labor Standards Act. Exempt means that they are not entitled to overtime because they are considered supervisors or managers with discretionary powers to make decisions, like hiring and firing, in the workplace. “In my experience, if a former employee is going to file a lawsuit, they recognize that [subpoenaing post-employment records is] fair game,” Brightwell said. “It’s not usually a surprise that that’s coming.” Plaintiffs’ lawyers are crying foul, saying employers are going too far in contacting a plaintiff’s new employer, just to scare them. “I’m glad to hear that there’s a judge in New York who has recognized these efforts to intimidate plaintiffs,” said Jennifer Salvatore of Nacht & Associates, an employee-rights firm in Ann Arbor, Mich. Salvatore said she has often seen cases in which employers will put on their witness lists the names of the plaintiffs’ new bosses, which can scare plaintiffs into dropping the suit in fear of their new employer finding out. “It can be a real stigmatizing thing for somebody for their employer to know that they are suing their former employer,” Salvatore said.v

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