The discovery of personnel records in employment discrimination lawsuits has a long history. A defendant employer may seek discovery of a plaintiff’s employment records at a prior employer or with an employer he or she joined after leaving the defendant’s employ, arguing that performance deficiencies at the other workplace may help demonstrate that the employee suffered from similar deficiencies while working for the defendant.

A plaintiff employee, on the other hand, may seek disclosure of the records of other employees, on several theories. Of course, she may seek the records of the individual she accuses of discrimination, to search for evidence that the alleged bad actor has a record of similarly offensive or improper conduct. She may also seek the records of other employees as comparators, to show that she was not treated as well as they in similar circumstances, which, she will claim, bolsters her argument that she was a victim of discrimination.

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