July 1, 2015

Copying Documents to Support Your Claims: Make Sure You’re on the Right Side of the Law

By Eric Havian

Copying your employer’s documents to support a lawsuit can result in a significant reward – or land you in a New Jersey jail.  On June 23, 2015, the New Jersey Supreme Court decided State v. Saavedra (No. A-86-13, June 23, 2015), refusing to dismiss a criminal indictment against an employee who copied documents of her employer to further an employment discrimination case.   On the same day, a federal court in Illinois (Shmushkovich v. Home Bound Healthcare (2015 U.S. Dist. LEXIS 81389, N.D. Illinois)) rejected a request that a whistleblower return documents that he copied from his employer’s files to use in his False Claims Act case.  The court held that such documents may properly be retained to support the whistleblower’s case against his employer for defrauding the government.

While the two decisions seem to reach opposite results, they follow what has become a reasonably well-settled pattern.  State and federal laws strongly encourage potential whistleblowers to provide documents (emails, spread sheets, company reports, etc) to support their claims that the defendant has defrauded the government.  For example, the federal False Claims Act requires every whistleblower to submit to the government “all material evidence” that supports his or her claim.  Since most whistleblowers are “insiders,” where would that “material evidence” come from if not from the employer’s files?  In complex fraud cases, the “smoking guns” are papers and pixels.

Recognizing the obvious, that without documentary proof the government could not possibly decide which whistleblower cases merit serious investigation, the courts have universally protected whistleblowers from suits by former employers claiming “theft” of documents.  As one court observed, a “confidentiality agreement cannot trump the False Claims Act’s strong policy of protecting whistleblowers who report fraud against the government.”  [Grandeau, 350 F. Supp. 2d 765, 773].  As long as the documents are relevant to proving that the government was cheated, an employee-whistleblower may copy them without fear of retribution, either by a former employer or a criminal prosecutor.

The same protections do not apply when an employee copies documents to further their own personal claims against an employer, such as discrimination claims.  A number of cases have allowed employers to sue former employees for copying documents in furtherance of such private claims.  Those decisions view employee copying as improperly bypassing the normal discovery rules that govern civil cases.  Where an employee copies documents that evidence discrimination, or simply copies documents in a “vast and indiscriminate” way [Cafasso, 637 F.3d 1047, 1062], the employee is exposed to liability.

The most extreme form of that liability was highlighted in Saavedra.  In that case an employee of the North Bergen Board of Education copied sensitive Board files to support her claim that the Board had discriminated against her.  Saavedra’s case was undoubtedly not helped by the nature of those files, which included such private documents as a parent’s bank statement, a student’s appointment with a psychiatrist, and a consent form for a student to receive special education services.  The district attorney indicted Saavedra, charging her with theft and other criminal acts.  The New Jersey Supreme Court upheld the indictment, forcing Saavedra to face the full range of criminal charges.

The lessons of Saavedra and other cases in this area are clear.  Documents are often the most powerful evidence of fraud, but the utmost caution is required before an employee hands over gigabytes of company information to an attorney.  Employee copying will generally be protected when it is in furtherance of a whistleblower claim exposing fraud against the government.  But the same sort of copying, if done to support a private lawsuit, could result in serious consequences for an employee.  Before employees undertake such actions, they should consult with an attorney to fully understand the opportunities and pitfalls of copying company documents.

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If you would like more information or would like to speak to a member of Constantine Cannon’s whistleblower lawyer team, please click here.

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