In re: Perez

The timing of a statement of disclosure does not negate an employee's status as an informant, and the identity of informants will only be justifiably released to the defending party if the information is essential to a successful defense.

Thomas Perez, the Secretary of the United States Department of Labor (the “Secretary”) brought suit against the Washington State Department of Social and Health Services (“DSHS”), alleging that DSHS had violated overtime and various record keeping provisions of the Fair Labor Standards Act. The Secretary’s initial investigation into the overtime violations revealed that there were over 2,000 social workers in Washington that had not been compensated for, or had not been adequately tracking, large amounts of overtime on a weekly basis. Initially, the evidence came from 50 statements from DSHS employees, but after the suit commenced, an additional 350 employees stepped forward with further information. The district court held that the 350 statements that were gathered after the suit commenced, were not subject to informants privilege and that the identifying information of those 350 employees should be released to DSHS. The most crucial factor to be considered in determining whether to issue a writ of mandamus to prevent the distribution of an employee informant’s identities to DSHS, is whether the lower court’s order was erroneous as a matter of law. The Ninth Circuit held that the informant privilege is not subject to an arbitrary deadline for coming forward. The panel stressed the imperative public policy need for protecting informants from retaliation by their employers. The panel held that, in order to overcome the informants privilege, DSHS would have to show that the “need for the information outweighs the government’s interest in nondisclosure.” However, the panel held that the remaining information was not essential to DSHS’s defense, and therefore the panel granted the petition for writ of mandamus. PETITION GRANTED.