Self-Help Discovery Carries Serious Risks in Employment Disputes

Employees who want to bring claims of harassment, discrimination, or retaliation against their soon-to-be former employers are often advised to document instances of misconduct.

But such guidance can lead to clients taking internal documents, forwarding confidential materials, and otherwise engaging in informal self-help discovery—evidence gathered by a party for use in potential litigation. These proactive measures may be detrimental to the plaintiff’s case and should be utilized cautiously.

One of the biggest risks of self-help when preparing a legal claim is that, upon discovery, employers may terminate employees for violation of privacy or confidentiality obligations.

If an employer discovers that a former employee has taken company information, that can shift the focus away from its own alleged misconduct and onto the employee’s actions. Self-help can also give the employer leverage to defend claims with their own counterclaim for breach of confidentiality.

Engaging in self-help isn’t necessarily fatal to an employee’s claim. Courts don’t automatically treat self-help discovery as improper. Instead, they weigh the circumstances with a balancing test.

Evaluating Self-Help

Employers and their counsel should take note of these balancing tests and understand that they may not be immune from liability for firing an employee who has engaged in self-help. Whether or not the activity is protected, juries may not look favorably towards employers who penalize employees for engaging in self-help.

In Niswander v. Cincinnati Insurance Company, an employee was terminated allegedly in retaliation for participating in a class action involving gender discrimination and unequal pay. While employed, the employee sent her class action attorneys copies of email exchanges with her supervisors related to her job performance, as well as “claim-file documents that allegedly would jog her memory regarding instances of retaliation[.]”

The Niswander court identified six factors to determine whether the employee’s actions were reasonable:

1. How the document was obtained

2. To whom it was given

3. The content of the document

4. The reason for the employee’s disclosure of the document

5. The scope of the employer’s policy on privacy of documents

6. The employee’s ability to preserve evidence without violating the employer’s privacy policy

While the court found the plaintiff’s dissemination of documents wasn’t reasonable under the circumstances, it acknowledged that “employees deserve protection when they make reasonable attempts to preserve evidence of illegal employment practices[.]”

State courts have followed suit. The New Jersey case of Quinlan v. Curtiss-Wright Corporation, expanded upon the Niswander test, adopting a “totality of the circumstances” analysis to consider the purpose of New Jersey’s Law Against Discrimination. In doing so, the Supreme Court of New Jersey blessed the trial court’s approach, allowing the jury to determine whether the employee was terminated for a discriminatory reason or for taking documents. The jury found for the plaintiff.

Similarly, in Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., the employee was a former attorney who worked at the defendant law firm. The plaintiff alleged she was being discriminated against based on her gender. The employer contended that the plaintiff was terminated for copying attorney-client privileged documents to assist in bringing her discrimination claim. Although it didn’t make any determination as to the plaintiff’s actions, the Supreme Judicial Court of Massachusetts recognized that self-help may constitute protected activity if “reasonable under the circumstances.”

To the extent company information is deemed a trade secret, the Defend Trade Secrets Act contains a carve-out providing limited immunity for purported whistleblowers; however, it’s not clear that such immunity applies to discrimination and retaliation claims.

Preserving Evidence

So, what should employees do, or not do? Employees should think twice about copying documents, particularly those containing proprietary or confidential information. Such action could be a violation of confidentiality obligations, and employees should have access to documents in discovery.

Instead, employees can create a carefully labeled folder in their work email or computer with the documents supporting their claim. During discovery, this folder can be easily identified and requested for production. If identified during negotiation, the contents—when reviewed by the employer’s counsel—may encourage settlement.

Employees can maintain a personal log or notes of the incidents giving rise to their claim and include specifics to help identify relevant documents, such as the date, subject, and author. These personal notes can jog the employees’ memory later, in addition to helping the plaintiff make targeted discovery requests, and strengthening a motion to compel production if the employer withholds documents.

Whether an employee may engage in self-help discovery in an employment case is jurisdictional and claim-dependent. Employees should seek guidance from counsel before endeavoring to do so, and counsel should do their due diligence in reviewing the law of the relevant jurisdiction before advising employees on this issue.

Employers should be mindful of the potential consequences of terminating employees who have engaged in self-help discovery, which may be considered protected activity or disfavored by the jury.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Megan Dubatowka is partner at Harris St. Laurent, where she helps executives, entrepreneurs, and companies navigate career-defining disputes and workplace crises in commercial and employment litigation.

Tina Lapsia is an associate at Harris St. Laurent, where she advises public and private companies, as well as individual clients, in high-stakes commercial and employment litigation and investigations.

Interested in writing? Review our author guidelines, and submit pitches to Insights@bloombergindustry.com.