Get The Personnel File: But Do It The Right Way

A recent appellate decision out of Florida’s Fifth District Court of Appeal outlines the procedure to follow when obtaining a personnel file of an alleged perpetrator from his or her employer. In Walker v. Ruot, the plaintiffs in an automobile negligence action alleged negligent entrustment of the vehicle as well as negligent hiring and/or retention of the employee involved in the accident. They served a request for production upon the employer seeking a complete copy of the driver’s personnel file which the trial court allowed without first conducting an in camera inspection. On writ of certiorari to the appellate court the discovery order was reversed and remanded.

In its opinion the appellate court noted that the employer lacked standing to assert the employee’s privacy interests (he had not yet been served with the complaint as his whereabouts were unknown) but the employer did have standing to challenge the relevancy of the discovery sought. The trial court’s error, in the appellate court’s opinion, was failing to conduct an in camera inspection to ferret out material related to compensation, benefits and the like from other material that could indeed be relevant to a negligent hiring or retention claim such as the employee’s training, competence, abilities and disciplinary history.

The lesson for plaintiff’s counsel is to simply not overreach. By all means, request the personnel file, but couple that request with a request for the in camera inspection.