Comparator Personnel Records in Discovery: Coworker Privacy

A former employee suing for discrimination will often ask for the personnel files of coworkers, usually the people who were treated better for similar conduct. Those coworkers have a constitutional privacy interest in their files, and the employer is usually the one who has to raise it. California courts don’t automatically block the request or automatically grant it. They balance the coworkers’ privacy against the employee’s need, and the outcome usually depends on how narrow the request is and what protections are offered.

Why do employees ask for coworkers’ files?

To prove disparate treatment. A common way to show discrimination is to point to a comparator: a coworker outside the employee’s protected group who did something similar and wasn’t fired or disciplined. The employee’s lawyer wants the comparators’ disciplinary histories, performance reviews, and sometimes compensation, to argue the employer’s stated reason was a pretext.

Some of that is legitimately relevant. If the company says it fired the employee for a policy violation, how it treated other employees who violated the same policy matters. The fight is usually over scope: which coworkers, which documents, and over what period.

What standard do California courts apply?

A balancing test from the California Supreme Court. In Williams v. Superior Court (2017) 3 Cal.5th 531, the court restated the framework: “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.”

The other side then gets its turn. Williams continued: “The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy.” Then the court balances.

Williams also changed an older rule. Some earlier cases had required a party seeking private information to always show a compelling need. The court disapproved those cases to the extent they required that showing “without regard to the other considerations articulated in” the balancing framework, and said only “obvious invasions of interests fundamental to personal autonomy” require a compelling interest. That means employers can’t count on a compelling-need argument alone. The stronger argument is about scope, sensitivity, and alternatives.

Which coworker records are most sensitive?

Medical, financial, and family information sits at the top. Disability accommodation files, leave records, medical certifications, Social Security numbers, home addresses, bank details, garnishments, and benefits elections are more private than a disciplinary write-up. Courts are much more willing to order production of a comparator’s discipline for the same policy violation than the comparator’s whole file.

That distinction is the employer’s best tool. A request for the complete personnel files of every employee in the department invites a narrowing order. A narrow request for written discipline issued to employees in the same position for violating the attendance policy during the last three years is harder to resist, and the employer may be better served producing it under a protective order.

What protections can an employer ask for?

A protective order, and courts have broad power to tailor one. Code of Civil Procedure section 2031.060(b) lets the court make “any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” The listed options include an order “That all or some of the items or categories of items in the demand need not be produced” and an order that production occur “only on specified terms and conditions.”

In practice, the terms usually include redaction of identifying and sensitive information, use of employee numbers in place of names where names aren’t needed, an attorneys’-eyes-only designation for the most sensitive material, a bar on using the documents outside the case, and filing under seal. Some courts also require notice to the affected coworkers so they can object, often called a Belaire-West notice in the class action context.

What if the employer simply produces everything?

That creates its own risk. Coworkers whose private information is disclosed without objection may be unhappy, and in some situations an employer’s disclosure of medical information can raise separate legal issues. The safer course is to object on privacy grounds, meet and confer about scope, and produce what is properly discoverable under a stipulated protective order.

Refusing everything carries risk too. Section 2031.060(h) says the court “shall impose a monetary sanction” against a party who unsuccessfully makes or opposes a protective order motion, unless it finds substantial justification. A blanket refusal to produce any comparator discipline in a disparate treatment case may not be substantially justified. Requests for the employee’s own personnel file and payroll records are a separate matter, covered in the firm’s post on personnel file and payroll records requests.

What should an employer do when a request for coworker files arrives?

The response deadline is short, so the comparator analysis should start immediately.

1. Make sure the litigation hold covers the files of the likely comparators and the discipline records for the policy at issue.
2. Calendar the response deadline and the meet-and-confer schedule, and tell the EPLI carrier the discovery fight is coming.
3. Identify who the true comparators are: the same decision-maker, the same policy, similar conduct, and a similar time period.
4. Pull those comparators’ discipline and performance records and flag every item containing medical, financial, or family information.
5. Talk to counsel about privacy objections, a proposed protective order, and whether producing a narrow set now avoids a broader order later.

Discovery strategy in discrimination cases is part of defending California employers in court.

Coworker records questions employers ask

Does the employer have to tell coworkers their files were requested?

Not always, but sometimes it’s required or wise. Courts may order notice so affected employees can object, especially when sensitive information is at stake. Even without an order, notifying a small number of comparators before production can help employee relations and reduce later complaints. Counsel should decide on notice early, because it can affect the timeline for production and any motion for a protective order.

Can the employer anonymize the records?

Often, yes. When the point of the request is to compare discipline, the comparator’s name may not matter, and courts frequently accept employee numbers or initials in place of names. The employee’s lawyer may later argue names are needed to depose a comparator. That request can be handled separately, usually for a smaller group, under the same protective order.

Who counts as a comparator?

Usually employees who were similarly situated in the ways that matter: the same decision-maker or chain of command, the same policy or standard, similar conduct, and a similar time frame. The narrower that group, the stronger the employer’s position on scope, and the more useful the records are to the defense if the comparators were in fact treated the same way.

If your company received a request for coworker personnel files

If a former employee’s lawyer has asked for other employees’ personnel files, the scope of the request and the protective order usually matter more than whether anything is produced at all. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving discrimination and disparate treatment. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.

Sources

The privacy framework is from Williams v. Superior Court (2017) 3 Cal.5th 531. Protective orders are governed by Code of Civil Procedure section 2031.060.

This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.