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Dawn Lalumera v. 2491 Corp. D/B/A Nifty Fifty's

August 27, 2012

DAWN LALUMERA, PLAINTIFF,
v.
2491 CORP. D/B/A NIFTY FIFTY'S, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Diamond, J.

MEMORANDUM

In this employment discrimination case, both employee and employer seek hearing transcripts and related filings from the Pennsylvania Department of Labor and Industry respecting the employee's unemployment compensation claim. (Doc. No. 20-1.) Until recently, the DOL regularly acceded to such third party discovery requests. Relying on recently-enacted Pennsylvania law, however, the DOL argues that the materials sought here are "privileged." I do not agree, and will order the DOL to produce the materials.

I. PROCEDURAL HISTORY

Plaintiff Dawn Lalumera alleges that Defendants 2491 Corp. and Stephen Washington- her former employer and supervisor-violated Title VII of the Civil Rights Act of 1964 and the Family Medical Leave Act. (Doc. No. 1 ¶¶ 26--45); 26 U.S.C. § 2601--54; 42 U.S.C. § 2000e. Both Plaintiff and Defendants subpoenaed from the DOL documents related to the claim Plaintiff filed for unemployment compensation after she left 2491 Corp.'s employ. The DOL-through its Unemployment Compensation Board of Review-objected to the subpoena and Plaintiff moved to compel. (Doc. No. 20.) The Board has responded to the Motion and Plaintiff has replied. (Doc. Nos. 23--25.)

II. LEGAL STANDARDS

A.Discovery

The parties to a federal civil suit "may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). "All evidentiary privileges asserted in federal court are governed, in the first instance, by Federal Rule of Evidence 501," which provides:

The common law-as interpreted by United States courts in the light of reason and experience-governs a claim of privilege unless any of the following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court.

But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

Pearson v. Miller, 211 F.3d 57, 65 (3d Cir. 2000); Fed. R. Evid. 501.

Because Plaintiff's claims are exclusively federal, I must apply the federal common law of privilege. Fed. R. Evid. 501; see Pearson, 211 F.3d at 66.

B.Law of Privilege

Whether to recognize a new federal privilege "should be determined on a case-by-case basis." Pearson, 211 F.3d at 66 (quoting Jaffee v. Redmond, 518 U.S. 1, 9 (1996) (recognizing psychotherapist-patient privilege under Rule 501)). I must consider whether a proposed privilege "promotes sufficiently important interests to outweigh the need for probative evidence." Id. at 67 (quoting Trammel v. United States, 445 U.S. 40, 47 (1980)). Federal courts are loath to recognize new privileges, which are antithetical to the search for truth. Univ. of Pa. v. EEOC, 493 U.S. 182, 189 (1990) ("[P]rivileges contravene the fundamental principle that 'the public . . . has a right to every man's evidence,'" (citing Trammel, 445 U.S. at 50)). Joining numerous courts, The Third Circuit has cautioned that considerations against the recognition of new privileges that would impede access to probative evidence are granted very significant weight . . . . [O]nly the most compelling candidates will overcome the law's weighty dependence on the availability of relevant evidence.

Pearson, 211 F.3d at 67 (citing Jaffee, 518 U.S. at 9); see also Univ. of Pa., 493 U.S. at 189 (declining to recognize academic peer review privilege); United States v. Nixon, 418 U.S. 683, 710 (1974) (cautioning that privileges "are not lightly created nor expansively construed"); In re Sealed Case, 148 F.3d 1073, 1079 (D.C. Cir. 1998) (declining to adopt "protective function" privilege requested by the Secret Service); In re Grand Jury, 103 F.3d 1140, 1149 (3d Cir. 1997) (cautioning that "privileges are disfavored," rejecting parent-child privilege); Carman v. McDonnell Douglas Corp., 114 F.3d 790, 794 (8th Cir. 1997) (rejecting a corporate ombudsman privilege, stating, "[t]he creation of a wholly new evidentiary privilege is a big step"); Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508, ...


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