Kovalenko v. Kirkland & Ellis LLP

Background

Zoya Kovalenko sued Kirkland & Ellis LLP and other defendants over her employment as an associate at Kirkland & Ellis from November 16, 2020, through September 28, 2021. Her amended complaint asserted sex discrimination, wrongful termination, retaliation, hostile-work-environment harassment, failure to prevent discrimination or harassment, intentional infliction of emotional distress, and defamation under federal and California law.

Before serving written discovery on Kovalenko, Kirkland & Ellis issued notices of intent to subpoena two of her former employers: Fish & Richardson P.C. and Paul Hastings LLP. The subpoenas sought six categories of documents, including personnel, compensation, benefits, medical and disability-related records, complaint and investigation files, grievance files, and litigation documents involving Kovalenko. Kovalenko moved to quash the subpoenas and requested a protective order barring the discovery. The subpoenas had been stayed pending the court’s decision.

Legal standards

Under Federal Rule of Civil Procedure 26, discovery may cover nonprivileged information relevant to a claim or defense and proportional to the needs of the case. The court must limit discovery that is unnecessarily duplicative or available from a more convenient, less burdensome, or less expensive source. Rule 26(c) permits a protective order to prevent annoyance, embarrassment, oppression, undue burden, or undue expense. Rule 45 requires a court to modify or quash a subpoena that, among other things, seeks privileged or protected information or subjects a person to undue burden.

The court explained that a party generally may move to quash a subpoena when the party has a personal right or privilege in the requested information. It found that Kovalenko had such an interest in the employment records and that both former employers had objected to the subpoenas’ relevance and burden.

Analysis

Personnel, compensation, and benefits records

The court granted the motion to quash Requests Nos. 1, 4, and 5. It found that personnel records from law firms that were not involved in Kirkland & Ellis’s termination decision were not directly relevant to whether Kovalenko was treated differently, harassed, or retaliated against at Kirkland & Ellis. The court also found the requests exceptionally broad because they sought virtually everything in Kovalenko’s post-law-school personnel files, including materials such as wage-garnishment notices, work-location transfers, offer letters, interview notes, and applicant evaluations.

The court rejected Kirkland & Ellis’s arguments that the records might show Kovalenko’s performance, support its defenses to her equal-pay claim, provide evidence about her reputation or defamation damages, show mitigation of wage loss, or undermine her credibility. The court found those theories speculative, marginal, or insufficient to overcome Kovalenko’s privacy interests. It also noted that Kirkland & Ellis had not shown that it first tried adequately to obtain the information from Kovalenko.

The court stated that Kirkland & Ellis could serve a narrowed subpoena for compensation and benefits records if it first made every effort to obtain that information from Kovalenko, including deposing her and bringing any necessary motions to compel, but remained unable to obtain it.

Medical records

The court granted the motion to quash Request No. 2, which sought records concerning leaves of absence, medical restrictions, disabilities, and medical records affecting employment status. The court held that Kirkland & Ellis had to depose Kovalenko and make an evidentiary showing that her emotional-distress claim involved more than ordinary, or “garden variety,” emotional distress before seeking this invasive third-party medical discovery. The court found that the amended complaint’s allegation of “severe emotional distress” alone was not enough to justify the discovery at that stage.

Complaint, grievance, and litigation records

The court also granted the motion to quash Requests Nos. 3 and 6. Kirkland & Ellis argued that these records could show a pattern of making discrimination complaints, particularly in response to poor performance evaluations. The court found that the requests were much broader than that theory, potentially reaching matters such as divorce proceedings, personal-injury cases, and complaints unrelated to discrimination or employment.

The court further concluded that even narrower requests for discrimination claims against former employers would be improper. It found that using prior claims to assess Kovalenko’s credibility could require deciding whether those earlier claims had merit, creating an unnecessary separate trial about other disputes. The court held that such discovery was not proportional to the needs of this case.

Disposition

The court granted Kovalenko’s motion to quash, quashed the subpoenas to Fish & Richardson P.C. and Paul Hastings LLP, and issued a protective order barring the requested discovery. Kirkland & Ellis was ordered to serve the order on both firms and file proof of service.