Once you file an employment/wrongful termination case, your (former) employer will typically subpoena your various records, including medical records and employment records. The purpose of those types of subpoenas is to evaluate your damages in the case, and also possibly find out whether there are facts in your documents that would allow the employer to successfully defend the case or impeach the claimant by showing that the employee’s allegations are not consistent with his records.
Here is a typical example. Suppose you file a disability discrimination / wrongful termination case after being terminated shortly after returning from FMLA and asking for an extension to that leave as an accommodation to your disability under ADA/FEHA. You remain on medical leave for a month after being terminated, and then find a job 10 months after being released to return to work. While you were looking for work, you attended a few therapy/counseling sessions for stress and anxiety associated with losing a job, and you have been prescribed certain anti-anxiety / anti-depression medications.
In your responses to the employer’s interrogatories, you honestly and properly disclose your current employment and your medical providers for the underlying FMLA and for your emotional distress.
The employer will then subpoena your medical records regarding the underlying disability to confirm that there is in fact a disability, and if there wasn’t – then try to defend a case by claiming exactly that – you were not actually disabled. The employer will further subpoena post-termination medical records to find out more about the extent of your disability, and how long you were unable to work after being terminated. This information is important in calculating your wage loss, because you would not be entitled to recover compensation for any time that you weren’t able to work anyway after being fired. Finally, the employer will subpoena therapy/psych records from before and after the termination in order to (1) assess the degree of your emotional distress resulting from termination; and (2) find out if there was a pre-existing mental condition (i.e. depression, anxiety, PTSD) or if there are other contributors to the claimed emotional distress to make an argument that your symptoms are in part or in whole are caused by other issues in your life (i.e. divorce, family death, etc.) Most of us have other issues, and it’s perfectly fine if you discussed them with your therapist or psychologist.
Generally, the employer is entitled to all such relevant information that supports or negates any claims, defenses or damages in your case, unless the subpoena unreasonable intrudes privacy and/or completely irrelevant to claims, defenses and damages. Examples of inappropriate requests are high school records, drug rehab records from before the employee even started working for the employer, old bankruptcy records and otherwise “digging for dirt.”
Generally, it’s a good idea to allow the employer subpoena your relevant records. If you have nothing embarrassing or damning to hide in your records, then the records obtained will likely help your case and will help the employer see that your disability, emotional distress and wage loss damages are real and provable. Some claimants vigorously guard their privacy just for the sake of privacy and for no other reason. There is no benefit in doing this and it only unnecessarily delays and causes frictions in the case.
If you believe that a subpoena is likely to reveal information that’s damaging to your case or both irrelevant and embarrassing (i.e. HIV or another type of sexually transmitted disease, abortion, suicide attempts, etc), you should inform your attorney, so he can discuss narrowing or withdrawing that subpoena with opposing counsel, or – if necessary – file a motion to quash that subpoena and seek a court’s ruling to prohibit the employer for obtaining the records in question.