Chapter 14 - § 14.5 • FORMAL DISCOVERY

• Jurisdiction: Colorado

§ 14.5 • FORMAL DISCOVERY

§ 14.5.1—Specific Privacy-Related Discovery Issues In Employment Cases

Without a doubt, privacy issues arise in discovery more than in any other context. Most frequently, privacy is asserted in objecting to production of personnel files, medical information, and financial records. Increasingly, in the Internet context, attempts to discover the identity of anonymous posters has also generated significant privacy litigation.

§ 14.5.2—Relationship To Open Records Statutes

The fact that a requested piece of information is exempt from disclosure under an open records law does not preclude its subsequent discovery in litigation under the Federal or Colorado Rules of Civil Procedure. In Martinelli v. District Court, 612 P.2d 1083 (Colo. 1980), a group of police officers resisted discovery of their personnel and Staff Investigation Bureau files from discovery under the Colorado Rules on the grounds that they were exempt from disclosure under CORA. 612 P.2d at 1093. The court rejected that argument on the ground that the exemptions from disclosure under the open records laws serve a different interest than the discovery of information in discovery. Id.

Unlike the open records laws, however, the discoverability of information is limited by its potential relevance. See, e.g., City of Colorado Springs v. White, 967 P.2d 1042, 1056 (Colo. 1998) ("In contrast to the discovery context, however, the need of the party requesting disclosure is not relevant to a request for public records"); Anderson v. Home Ins. Co., 924 P.2d 1123, 1126 (Colo. App. 1996) ("There is no requirement that the party seeking access must demonstrate a special interest in the records requested"); Denver Publ'g Co. v. Univ. of Colo., 812 P.2d at 685 (requester bears no burden "to gain access to public records").

Moreover, the initiation of litigation does not limit a person's rights under the open records laws. The law is well established that the Colorado and Federal Rules of Civil Procedure do not limit a litigant's right to access public documents under state and federal public access statutes, including CORA. See In the Interest of A.A.T., 759 P.2d 853, 854 (Colo. App. 1988) (rejected custodian's argument that CORA request filed by litigant should be treated as discovery request under Colorado rules); Morrison v. City and County of Denver, 80 F.R.D. 289, 291 (D. Colo. 1978) ("The statute [CORA] and [federal] rules are not in conflict; they are in harmony").⁹ In fact, CORA itself assumes that litigants may request documents under CORA that relate to pending litigation. C.R.S. § 24-72-204(5) ("[N]o court costs and attorney fees shall be awarded to a person who has filed a lawsuit against a . . . local public body and who applies to the court for an order pursuant to this subsection (5) for access to records of the . . . local public body being sued if the court finds that the records being sought are related to the pending litigation and are discoverable pursuant to chapter 4 of the Colorado rules of civil procedure").

§ 14.5.3—Personnel Files

In employment litigation, employer-defendants routinely object to the production of personnel files on the ground that production will contravene the privacy interests of its employees. In evaluating the legitimacy of such objections, it is important to examine the privacy interests for the individual documents contained in the file, rather than to consider the privacy interest in a personnel file as a whole. For example, most plaintiffs in employment cases are primarily interested in documents regarding the performance, discipline, or termination of similarly-situated employees. As discussed in § 14.2.2, the Tenth Circuit has rejected the contention that there is a legitimate expectation of privacy in such documents that merely pertain to an employee's conduct as an employee. However, personnel files undoubtedly include information that implicates privacy interests. Such personal and private information includes social security numbers, addresses, dates of birth, medical leave history, and health insurance elections. That information tends to have little or no relevance to an employment dispute, and thus the invasion of privacy cannot be justified.

While many courts pay lip-service to privacy in personnel files, when denied, production is typically denied on relevance or overbreadth grounds. For example, the Tenth Circuit in Regan-Touhy v. Walgreen Co., 526 F.3d 641...