One of the most harsh realizations for a plaintiff is that lawsuits can be very invasive. Most plaintiffs make at least some attempt to keep their private lives under lock and key, believing that no one will ever find out about their personal lives. This is almost always a mistaken belief that becomes blatantly clear at a less than ideal time.
When meeting with my clients for the first time, I always urge them to tell me everything that could have a bearing on their case no matter how irrelevant or private they think it is. I explain that if I know any negative or potentially harmful information, I can deal with it when it comes up but if I find out from the defendant, it could be hazardous to their case. Like clockwork, at the end of the conversation, the client will say, “that’s all there is” and we won’t speak of it again.
What plaintiffs don’t realize is that once a lawsuit is even threatened, their employer will make digging up dirt on them its life mission. They will scour the employee’s social media pages, pull questionable photos and interpret them out of context in an effort to scare the employee away. An employer may even send an investigator to follow the employee and report back with their activities.
Fortunately, California employees do have a right to privacy under Article 1 Section 1 of the California constitution. This right to privacy extends to an employee’s sex life, financial affairs, medical files and even employment records. However, that right to privacy is not absolute. An employer can overcome the right to privacy by establishing that the private information is directly relevant to the issues in the case, that it is essential for the fair resolution of the issues in the lawsuit and that there is a compelling need for the information which trumps the right to privacy. While this is a very high standard to meet and the burden is on the employer, an employee needs to be aware that their right to privacy can be eroded depending on the circumstances. Ultimately, the decision to share protected information with your employer will be up to your Judge.
The take-away here is to tell your attorney everything you’re concerned about from the very beginning. You can work together to minimize the damage to your case and assess whether you really can keep your private life private before it’s too late.