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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6793
Experience:  Significant experience in all areas of employment law.
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A former co worker is suing my employer for wrongful termination,

Resolved Question:

A former co worker is suing my employer for wrongful termination, for him being a whistleblower (supposedly). He said he was wrongfully terminated for bringing to light things about me. The company investigated and found no wrongdoing on my part. He was let go due to force reduction, 2 months later. The question I have is can my personal phone records, not company phone, and personal email be subpeneaod?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question.

I think that it is very unlikely. Such records would not pertain directly to a whistle blowing lawsuit. The issue in a whistle blowing suit is not whether illegal conduct occurred, but rather, whether an employee was terminated as a result of reporting illegal activity.

Put another way, a whistle blowing claim exists independent of whether anything illegal actually happened. If an employer terminates an employee for reporting an allegedly illegal act, even if such illegal conduct is later shown to have never occurred, the employer is still wrongfully terminating the employee in retaliation for "whistle blowing."

In the very unlikely even that phone records are subpoenaed, an individual in your circumstance would have the right to move the quash the subpoena, or severely limit its scope on the grounds that the phone records request would be overly intrusive and irrelevant. Records would NOT be handed over without your knowledge and without you having an opportunity to object.

So to summarize, it's unlikely that the phone records of an employee in your circumstance would be subpoenaed because a claim for whistle blowing does not require proof that illegal conduct actually occurred, merely that it was REPORTED and that the employee who reported it was subsequently terminated for making the report. Even if such records were subpoenaed, an individual in this circumstance would be able to move to quash the subpoena or limit its scope.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Although I cannot always provide good news, I hope that my answer gives you a better understanding of the law and your rights so that you can obtain the best possible result under the circumstances. Also, please bear in mind that experts are not credited for unaccepted answers, so I greatly appreciate you taking the time to "accept" my answer and leave positive feedback.

Finally, none of the above constitutes legal advice nor is any attorney client relationship created between us.
Customer: replied 2 years ago.
If the lawyer representing the person suing my employer requests my personal cell phone records, and personal email, would i be notified beforehand? Also, why is there even a chance they can look at my personal records if the lawsuit is against my employer, and not me? Could i be asked to testify about what this former coworker accused me of, or is that irrelevant?
Expert:  Patrick, Esq. replied 2 years ago.
Hello again and thank you for following up. I want to make sure that you are absolutely satisfied with my answer, so please let me address the concerns you raise one by one:

If the lawyer representing the person suing my employer requests my personal cell phone records, and personal email, would i be notified beforehand?

Yes, as stated above, a lawyer would need to subpoena these records and an individual in your circumstance would be notified of the subpoena and given the chance to object to it prior to the records being produced.

Also, why is there even a chance they can look at my personal records if the lawsuit is against my employer, and not me?

I do not know every fact of your case and even if I did, it would be impossible to predict with absolute certainty what can and cannot happen. What I can say is that such records would not seem to have any relevance whatsoever and I cannot think of a reason why they would need to be produced.

Could i be asked to testify about what this former coworker accused me of, or is that irrelevant?

That would be irrelevant. As discussed above, the truth or falsity of the underlying "ilegal conduct" is irrelevant in a whistleblower claim. What is relevant is simply whether the whistleblower was terminated for making the report.

Again, my number one goal is that you are satisfied with my answer. If you are, I would greatly appreciate your "accept." If you still require further clarification, I am more than happy to continue assisting you.

Very kindest regards.
Customer: replied 2 years ago.
Thanks for your help. You have been very helpful, and I appreciate your advise/opinion, based on your experience. I have one last question. My employer layed off approx 20 additional employees around that time. Does that bode well for my employer, or does it not matter? Also, his position has not been filled till this day. Does that help my employers case? Last question, why could I possibly be asked to testify, or get involved if the lawsuit is against my employer, and not me?
Expert:  Patrick, Esq. replied 2 years ago.
Hello again. No problem with the followup questions, I want to make sure you are completely happy with my answer.

My employer layed off approx 20 additional employees around that time. Does that bode well for my employer, or does it not matter?

Yes. This would tend to indicate that the "whistle blower's" termination was not due to whistle blowing, but rather was part of an inevitable layoff. This is very helpful to the defense of a whistle blowing claim.

Also, his position has not been filled till this day. Does that help my employers case?

Yes, this also helps because it goes to show that there was a legitimate need to eliminate this individual position and that he wasn't simply fired for whistle blowing.

Last question, why could I possibly be asked to testify, or get involved if the lawsuit is against my employer, and not me?

I can't think of a reason why the testimony of an individual in your circumstance would be relevant, since presumably you would have no control over the decision to fire or retain the whistle blowing employee.

Again, I truly hope that this information helps you and I would be extremely grateful for your "accept" so that I may receive credit for my responses.

Very kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 6793
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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