United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. MITCHELL U.S. MAGISTRATE JUDGE
matter comes before the court on non-party Kansas Department
of Labor's (“KDOL”) objection (ECF No. 25) to
the court's April 22, 2019 order (ECF No. 18). That order
required the KDOL to produce unemployment records relating to
plaintiff Van Hughes. For the reasons discussed below, the
court overrules the KDOL's objection.
April 15, 2019, defendant Amarr Company (“Amarr”)
filed a motion (ECF No. 16) requesting that the court order
the KDOL to produce records concerning an unemployment claim
filed by Mr. Hughes following the end of his employment with
Amarr. After Mr. Hughes informed the court that he did not
oppose Amarr's motion, the court found the requested
documents were relevant and discoverable. On April 22, 2019,
the court ordered the KDOL to produce responsive documents
for inspection and copying. (See Order (ECF No. 18),
at 1.) The court allowed the KDOL to (1) withhold from
production any documents that are deliberative or
conciliatory in nature or that are work product of a KDOL
attorney; and (2) file objections to producing any other
documents that the agency contended it has a legal basis not
to produce. (Id.)
KDOL filed an objection to producing the documents discussed
in the court's April 22 order. The KDOL's objection
argues that federal law requires it to keep the unemployment
records the court ordered produced confidential.
(See KDOL's Objection (ECF No. 25), at
¶¶ 2, 7.) The KDOL does not contend that the
documents it is withholding are deliberative or conciliatory
in nature, nor does the KDOL argue that they reflect the work
product of a KDOL attorney.
Confidentiality of Unemployment Records
United States Department of Labor requires that states keep
unemployment compensation (“UC”) information
“which reveals the name or any identifying particular
about any individual or any past or present employer or
employing unit agencies” confidential. See 20
C.F.R. § 603.4. This confidentiality requirement is not
without exceptions. Disclosure of UC information is
permissible, for example, “in response to a court order
. . . as specified in § 603.7(b).” Id.
§ 603.5(h). While § 603.7(a) generally requires a
state agency to “file and diligently pursue a motion to
quash” if it receives a subpoena or other compulsory
process seeking UC information, § 603.7(b) allows the
agency to automatically disclose UC information pursuant to a
court order where “a well-established pattern of prior
court decisions have required disclosures of this
The KDOL's objection is without merit.
Section 603.5 permits disclosure of the UC records.
KDOL relies solely on the confidentiality requirement
articulated in § 603.4 to justify its refusal to comply
with the court's April 22 order. The records at issue,
however, fall squarely within the court-order exception to
the general confidentiality rule. See Id.
§§ 603.5(h); 603.7(b) (permitting disclosure of UC
information “in response to a court order” where
“a well-established pattern of prior court decisions
have required disclosures of this type”). As the KDOL
should know, the court's April 22 order was part of a
well-established pattern of prior orders in this District
that have required the KDOL to produce unemployment documents
relating to one or more parties in a case. See,
e.g., Order, Meier v. Shawnee Mission Med.
Ctr., No. 18-2368-JWL-KGS (D. Kan. Mar. 1, 2019), ECF
No. 36; Order, Mendoza v. Preco, Inc., No.
17-2565-DDC-GEB (D. Kan. May 4, 2018), ECF No. 29; Agreed
Order, McDaniel v. Allstate Ins. Co., No.
17-2427-JAR-GEB (D. Kan. Feb. 23, 2018), ECF No. 31; Agreed
Order for Inspection and Reproduction of Kansas Department of
Labor Records, Odhuno v. Reed's Cove Health &
Rehab., LLC, No. 15-1347-EFM-GEB (D. Kan. Sept. 6,
2016), ECF No. 63; Agreed Order, Guaetta v. Compass Grp.
USA, Inc., No. 10-2487-JTM-KMH (D. Kan. Apr. 20, 2011),
ECF No. 40; Order for Inspection and Reproduction of Records
of Kansas Department of Labor, White v. The Graceland
Coll. Ctr. for Prof'l Dev. & Lifelong Learning,
Inc., No. 07-2319-CM-GLR (D. Kan. Jan. 10, 2008), ECF
KDOL's argument that the April 22 order was not a
“court order” within the meaning of §
603.5(h) is without merit. The KDOL claims that the order was
not a “court order” because the agency was not
provided an opportunity to assert its confidentiality
objection in response to Amarr's motion. (See
KDOL's Reply (ECF No. 28), at 2.) Nothing in §
603.5(h) indicates that the term “court order”
refers only to those orders entered by a court after an
agency has opposed the initial motion. Indeed, §
603.5(h) references § 603.7(b), which specifically
provides that an agency does not need to take action
to avoid the disclosure of UC information where a court order
is part of “a well-established pattern of prior court
decisions” requiring disclosure. Federal law clearly
permits the KDOL to disclose the UC records at issue pursuant
to the April 22 order.
The UC records are not privileged.
KDOL also argues that the UC records at issue are privileged
against discovery under § 603.4. Because this is a
federal question case, federal law governs claims of
privilege. See Fed. R. Evid. 501. The KDOL cites no
case law in support of its claim that § 603.4 creates a
privilege for UC records under federal law. Indeed, courts
analyzing this issue have declined to recognize a new federal
common law privilege applicable to UC records. See,
e.g., Easter v. Beacon Tri-State Staffing,
Inc., No. 2:17-CV-197, 2017 WL 5126153, at *3 (S.D. Ohio
Oct. 17, 2017) (commenting that “every court
considering the issue has . . . conclude[d] that no privilege
for unemployment records should be recognized”);
A.G. v. Burroughs, No. 3:13-CV-01051-AC, 2014 WL
1807110, at *7 (D. Or. May 7, 2014) (finding that the UC
records sought were ...