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wrongful termination lawsuits and privacy in employment and medical records

Wrongful Termination Litigation and Your Privacy Rights

Most wrongful termination cases involve claims for emotional distress. A Plaintiff who proves that he/she was harassed, discrimianted or retaliated against is generally entitled to emotional distress damages under FEHA, ADA, and other state and federal laws. However, this also means that the employer-defendant will be allowed in many, if not most, cases subpoena your personal records, concerning your prior and current employment, your medical records, if your case involved disability discrimination allegations, and your psychological/mental/counseling records, if any such records exist, to find out the extent of your emotional distress as documented by your healthcare professionals, to find out whether you have any pre-existing conditions, that started before your termination, and to also learn about whether there were other things in your life that contributed to your emotional distress at the time of your termination.

The potential need to disclose the above information is something you need to think about early on as a potential plaintiff in a wrongful termination case. From my experience, most people don't have a problem disclosing their records. Some of my clients have had abortions, suicide attempts, drug addictions, and other negative information in their records but they didn't mind disclosing it. However, some people would much rather keep this kind of information to themselves. This is of course your personal decision. You should carefully consider early on whether you are ready to be an "open book" and allow the employer to look at your medical and empoyment records, for at least the past 10 years. If there is any information that you wish to keep private and away from the defendant's eyes, you should discuss this with your attorney early on - preferrably during your first meeting.

Although you don't completely waive your privacy rights just because you file a wrongful termination lawsuit and some information can be protected from disclosure by a court order, it's not a good idea to count on that. There is no way to know in advance how a court will rule on a disclosure issue on any given documents, and the disclosure rules are generally pretty liberal, favoring disclosure over privacy  - at least in wrongful termination and discrimination cases. However, being aware of such issues early on will allow your attorney to do his own "homework" and figure out how to either protect the potentially damaging records or find other avenues of dealing with this problem, depending upon the kind of claims you are planning to bring.

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Law Office of Arkady Itkin - San Francisco & Sacramento Injury and Employment Lawyer
We represent employees and employers in employment and wrongful termination cases, as well as victims of serious injuries in San Francisco, Oakland, Sacramento, San Jose, Palo Alto, San Mateo and throughout Northern California. We all represent businesses and start-ups in a wide range of business and employment issues and disputes. 


57 Post Street, Suite 812, San Francisco, CA 94104; Tel. (415) 295-4730; Fax. (415) 508-3474; [email protected]
  • Home
  • Employment Law
    • Wrongful Termination >
      • At-Will Employment
      • Termination After Unfair Warnings and Write-Ups
      • Union Grievance, Workers Comp and Wrongful Termination
      • Labor Code 970 Claims
      • Promissory Estoppel and Employment Contracts
      • Implied Contract Claims
    • Discrimination >
      • Proving Discrimination
      • Age Discrimination
      • Disability Discrimination >
        • Protected Disabilities
        • Medical Leave / Disability Accommodations
        • Job Reassignment As A Disability Accommodation
        • SSI Disability Benefits and Your Court Case
        • Sample Request for Reasonable Accommodation
      • Pregnancy Discrimination
      • Race Discrimination
      • Sample Discrimination Complaint
      • DFEH and EEOC Investigations
    • Retaliation >
      • How to Prove Retaliation
      • Dealing with Retaliation While Still Employed
      • Retaliation for Complaining
      • Whistleblower Retaliation
    • Harassment
    • Defamation at Workplace
    • Prof. License Defense
    • Leaves of Absence >
      • Medical Leave as Reasonable Accommodation
      • FMLA Entitlement and Reinstatement to Work
      • CFRA Leave
      • Employers' FMLA Notice Obligations
      • Paternity Leave (FMLA)
      • Sample FMLA Leave Request
    • Wages / Overtime Claims >
      • Wage Claims
      • Employee or Contractor
      • Exempt / Non-Exempt >
        • Admistrative Exemption
        • IT Support Specialists Compensation
        • Computer Professional Exemption from Overtime
        • Recruiters / Account Executives Exemption
        • Complaining About Being Misclassified
      • Vacation Pay / PTO
      • On-Call Time Compensation
      • Deductions fr. Commissions
    • Unempl. Benefits Appeals >
      • Tips for EDD Phone Interview
      • Unemployment Benefits Appeal Hearing Representation
      • CUIAB Hearing Tips
    • Employment Law Blog
    • For Employers
  • Personal Injury
    • Five Tips For Injury Cases
    • Slip-and-Fall Injuries
    • Assault and Battery
    • Recorded Statements
    • Repairing Your Vehicle
    • Unpaid Medical Bills
    • Injury Law Blog
    • Medical Malpractice
    • Police Excessive Force
  • Practice Areas
  • About
  • Results
  • Submit Case
  • Contact
  • Resources
    • Consultations
    • Workplace Rights Checklist
    • Deposition Tips
    • Mediation Tips
    • Effective Mediator
    • Suing Current Employer
    • Severance Agreements
    • Workplace Investigation
    • Arbitration
    • Statutes of Limitations
    • Healthy Litigation Mindset
    • Trial Tips
    • Working Remotely
    • How To Find The Right Lawyer For Your Case