Gen. 249] 249

PERSONNEL

EVIDENCE ) PERSONNEL FILES OF PRIVATE EMPLOYER ARE NOT

PRIVILEGED AGAINST DISCOVERY

June 2, 1995

The Honorable Gilbert J. Genn

House of Delegates

You have requested our opinion whether the personnel files of

a private employer are privileged against discovery in civil litigation.

For the reasons stated below, we conclude that the personnel

files of a private employer are not privileged against discovery in

civil litigation. Whether such files may actually be discovered

depends upon their relationship to potential evidence in the

litigation. Even if discovery of personnel files occurs, however, the

privacy interests of those who are the subject of the files may be

safeguarded to some extent by a protective order. 

I

Background

Maryland Rule 2-402(a) defines the scope of discovery as

follows:

(a) A party may obtain discovery

regarding any matter, not privileged, including

the existence, description, nature, custody,

condition, and location of any documents or

other tangible thing and the identity and

location of persons having knowledge of any

discoverable matter, if the matter relates to the

claim or defense of the party seeking

discovery or to the claim or defense of any

other party. It is not ground for objection that
250 [80 Op. Att’y

1

 Maryland Rule 2-402(a) contains language paralleling that in

Federal Rule of Civil Procedure 26(b)(1). The Court of Appeals has said

that it will look to federal decisions construing the corresponding federal

rule for guidance in construing a similar State rule. Snowhite v. State ex

rel. Tennant, 243 Md. 291, 308-09, 221 A.2d 342 (1966). Accord Turgut

v. Levine, 79 Md. App. 279, 289, 556 A.2d 720 (1989).

the information sought is already known to or

otherwise obtainable by the party seeking

discovery or that the information will be

inadmissible at the trial if the information

sought appears reasonably calculated to lead

to the discovery of admissible evidence. An

interrogatory or deposition question otherwise

proper is not objectionable merely because the

response involves an opinion or contention

that relates to fact or the application of law to

fact.1

One of the objectives of the rules of discovery is “to require the

disclosure of facts by a party litigant to all of his adversaries, and

thereby to eliminate, as far as possible, the necessity of any party to

litigation going to trial in a confused or muddled state of mind,

concerning the facts that gave rise to the litigation.” Baltimore

Transit Co. v. Mezzanotti, 227 Md. 8, 13, 174 A.2d 768 (1961).

Accord Billman v. State Deposit Corp., 86 Md. App. 1, 12-13, 585

A.2d 238, cert. denied, 323 Md. 1, 590 A.2d 158, cert. denied,

112 S.Ct. 304 (1991). 

Under the rule, information is discoverable if it is (i) not

privileged; (ii) relevant to the subject matter involved in the

action, whether it relates to a claim or defense of the party

seeking discovery or defense of another party; or (iii) reasonably

calculated to lead to the discovery of admissible evidence. See

Rubin v. Weissman, 59 Md. App. 392, 400, 475 A.2d 1235 (1984);

Paul V. Niemeyer and Linda M. Schuett, Maryland Rules

Commentary 253-54 (2d ed. 1992). Information is privileged for

discovery purposes if it would be privileged at trial under the rules

of evidence. “Privileges for confidential communications are

created because the state thinks a particular relationship ... is

sufficiently important that it should be fostered by preserving

confidentiality in the relationship even at the cost of losing evidence

that would help to determine the truth in later litigation.” Charles
Gen. 249] 251

2

 SG §10-616(i) “was intended to give personnel file access only

to the person who is the subject of the file or to those persons who actually

supervise or are directly responsible for the supervision of the person who

(continued...)

Alan Wright, Law of Federal Courts §81, at 549 (4th ed. 1983)

(footnote omitted). 

The rules of discovery are to be liberally construed.

Mezzanotti, 227 Md. at 13. A trial court is given wide discretion in

applying the rules. 227 Md. at 13-14. Accord Karl v. Davis, 100

Md. App. 42, 55, 639 A.2d 214 (1994). 

Your inquiry arises from the situation in which an employee

sues his or her employer, usually for unlawful discrimination or

wrongful termination, and seeks to discover the personnel files of

other employees who are not parties to the case. The litigant

employee usually seeks the personnel files to determine if the

employer treats all similarly situated employees in the same manner,

or whether the employer treats some similarly situated employees

differently. This type of comparative information is often

“necessary to afford the employee plaintiff a fair opportunity to

develop his or her case and may be relevant to establish the

pretextual nature of defendant [employer’s] conduct.” Flanagan v.

Travelers Ins. Co., 111 F.R.D. 47 (W.D.N.Y. 1986). See generally

Stefan Epstein, Annotation, Discovery, Under Federal Rules of Civil

Procedure, in Actions Brought by Private Plaintiffs Under Equal

Employment Opportunity Provisions of Civil Rights Act of 1964, 31

A.L.R. Fed. 657 (1977).

II

Discovery of Personnel Records

In general, public policy favors protecting the confidentiality

of personnel files. This policy is reflected in the Maryland Public

Information Act, which requires that a custodian deny inspection of

a personnel record of a public employee. §10-616(i) of the State

Government (“SG”) Article, Maryland Code. The obvious purpose

of this subsection is to preserve the privacy of personal information

about a public employee that is accumulated during his or her

employment. 65 Opinions of the Attorney General 365, 367 (1980).2
252 [80 Op. Att’y

2

 (...continued)

 is the subject of the file.” 78 Opinions of the Attorney General 291, 294

(1993).

 Disclosure of the contents of personnel files may be considered

a breach of an employee’s reasonable expectation of confidentiality

and personal privacy. See Scott L. Fast, Breach of Employee

Confidentiality: Moving Toward A Common-Law Tort Remedy, 142

U. Pa. L. Rev. 431, 438 (1993) (“According to one survey, more

than fifty percent of workers and executives consider the personal

information kept by their employers to be ‘very important’ in terms

of privacy ...”). Indeed, where the employee is not a party to the

litigation, such expectations are heightened. Revealing such

information may cause morale problems. In addition, “employers

may cease to frankly criticize [employee] performance for fear that

any written evaluations they prepare may be used against them ....”

In the Matter of Hawaii Corp., 88 F.R.D. 518, 524 (D. Hawaii

1980). What is more, “by chilling the free flow of candid

communications in this manner, the ability of the [employer] to

maintain their standards and to improve employee performance will

arguably be impaired.” Id.

Nevertheless, while there are strong public policy arguments

in favor of protecting personnel files, such a policy alone does not

create a privilege for the purposes of discovery. Cf. Boyd v. Gullett,

64 F.R.D. 169, 177 (D. Md. 1974) (exemption in Public Information

Act for investigatory records does not create discovery privilege).

Rather, the policy becomes an evidentiary privilege only after

recognition as such in statute or case law. 

Policy arguments in favor of confidentiality have resulted in

recognition of a number of privileges, some of which derive from

the common law and others of which are purely statutory. The

following privileges are set out in the Courts & Judicial Proceedings

Article, Maryland Code: marital privilege, §9-105; privilege against

self-incrimination, §9-107; attorney-client, §9-108; psychiatristpatient, §9-109; psychiatrist/mental health nursing specialist-patient,
Gen. 249] 253

3

 It is not beyond imagining that the Maryland Court of Appeals

might recognize such a privilege as a matter of common law, as one

commentator has urged. See Scott L. Fast, Breach of Employee

Confidentiality: Moving Toward A Common-Law Tort Remedy, 142 U.

Pa. L. Rev. at 459. However, we have no basis for predicting that the

Court will do so.

§9-109.1; accountant-client, §9-110; clergy-penitent, §9-111;

journalist-source, §9-112; and social worker-patient, §9-121.

Maryland courts also recognize an executive privilege, Hamilton v.

Verdow, 287 Md. 544, 414 A.2d 914 (1980), and a legislative

privilege, Montgomery County v. Schooley, 97 Md. App. 107, 627

A.2d 69 (1993). 

However, Maryland courts have not recognized an employeremployee privilege. See Smith v. B.& O. R. R. Co., 473 F. Supp. 572,

585 (D. Md. 1979) (describing Maryland law).

3

 Accordingly,

because the personnel files of an employer are not privileged, they

may be subject to discovery if the broad relevancy standard in Rule

2-402(a) is met. 

Federal cases provide a wealth of examples in which such

discovery was allowed. See, e.g., Coughlin, 946 F.2d 1152 (plaintiff

was entitled to discover personnel files of employees who had been

guilty of a variety of infractions more serious than those committed

by plaintiff, but who nevertheless were not discharged); Weahkee v.

Norton, 621 F.2d 1080 (10th Cir. 1980) (plaintiff who contended

that he had been discriminated against in promotions was entitled to

discover, in his employment discrimination suit, personnel files of

other employees who had allegedly been promoted or hired in

discriminatory preference over him); Orbovich v. Macalester

College, 119 F.R.D. 411 (D. Minn. 1988) (professor who alleged she

was denied tenure as a result of sex discrimination, was entitled to

discover tenure and personnel information regarding other faculty

members for purpose of comparing treatment of genders at college).

See also Smith v. B.& O. R.R. Co., 473 F. Supp. at 585 (information

on annual and guaranteed incomes of employees was not privileged

information and was subject to discovery). But see McGowan v.

General Dynamics Corp., 794 F.2d 361 (8th Cir. 1986) (denial of

applicant’s request to compel discovery of personnel and

employment records relating to all clerical and line position jobs

from date potential applicant first applied was not an abuse of
254 [80 Op. Att’y

4

 Certain information obtained during the employer-employee

relationship is privileged. The Americans with Disabilities Act (“ADA”)

provides that information received by an employer about an employee (or

an applicant) as a result of a medical examination is confidential. 42

U.S.C. §12112(d)(2), (d)(3), and (d)(4). Such information must be

collected and maintained in separate medical files, not the employee’s

personnel record. §12112 (d)(3)(B). See 29 C.F.R. §1630.14(b)(1) and

(c)(1). In essence, the ADA creates a privilege against discovery of

medical information received by an employer. This privilege may be

overcome in limited circumstances (for example, in an ADA enforcement

action, 29 C.F.R. §1630.14(b)(1)(iii), and with regard to work safety or

accommodations, 29 C.F.R. §1630.44(g)(ii)). For State law provisions

protecting medical records, see Title 4, Subtitle 3 of the Health-General

Article.

5

 Maryland Rule 2-403 is similar in substance and form to Federal

Rule of Civil Procedure 26(c).

discretion, where request was extremely broad in scope and probably

irrelevant).4

III

Protective Orders

Although no privilege against discovery of personnel files

exists, certain restrictions on discovery may be sought. Maryland

Rule 2-403(a) provides that a court may limit discovery to protect

against “annoyance, embarrassment, oppression, or undue burden or

expense ....”5 Under this rule, the court may limit discovery by way

of a protective order requiring: 

(1) that the discovery not be had, (2) that the

discovery not be had until other designated

discovery has been completed, a pretrial conference

has taken place, or some other event or proceeding

has occurred, (3) that the discovery may be had

only on specified terms and conditions, including

an allocation of the expenses or a designation of the

time or place, (4) that the discovery may be had

only by a method of discovery other than that

selected by the party seeking discovery, (5) that

certain matters not be inquired into or that the scope
Gen. 249] 255

6

 Of course, the court must take care to avoid unnecessary

infringement of the plaintiff’s interests. Farnsworth v. Proctor & Gamble

(continued...)

of the discovery be limited to certain matters, (6)

that discovery be conducted with no one present

except persons designated by the court, (7) that a

deposition, after being sealed, be opened only by

order of the court, (8) that a trade secret or other

confidential research, development, or commercial

information not be disclosed or be disclosed only in

a designated way, (9) that the parties

simultaneously file specified documents or

information enclosed in sealed envelopes to be

opened as directed by the court.

For example, the federal Circuit Court of Appeals for the Ninth

Circuit held that a protective order limiting discovery was proper

under the following circumstances: 

Plaintiffs seek more than statistical data of

officer employment termination, discipline

and compensation. They demanded access to

[the defendant agency’s] personnel files to

compile their own statistics. While these files

are not absolutely privileged, the confidential

nature of the employee personnel files

suggests that opening the files to the plaintiffs

for a general search could reach well beyond

the legitimate inquires necessary to this

litigation and would impact disciplinary

procedures within the [agency].... 

While plaintiffs demonstrate the relevance of

statistics to their suit, they fail to show that

discovery of the actual files was necessary.

Focused discovery could have been employed.

Sanchez v. City of Santa Ana, 936 F.2d 1027, 1034 (9th Cir. 1990).

See also Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590 (2d Cir.

1986) (protective order properly permitted only plaintiff’s lawyers

to have direct access to the personnel files produced by the

defendant in the course of discovery).6
256 [80 Op. Att’y

6

 (...continued)

Co., 758 F.2d 1545, 1547 (11th Cir. 1985). See Longmire v. Alabama

State University, 151 F.R.D. 414 (M.D. Ala. 1992) (oral motion to exclude

plaintiff employee from production of personnel files denied where

plaintiff’s presence would make document production more efficient

because plaintiff had personal knowledge of the case).

IV

Conclusion

In summary, it is our opinion that personnel files of a private

employer are not privileged against discovery in civil litigation. 

J. Joseph Curran, Jr.

Attorney General

Kimberly Smith Ward

Assistant Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice