Written by Galen T. Shimoda and Justin P. Rodriguez
In many instances people leave their employment, either because they quit or were fired, but still have a couple company documents lying around at home, in their car, or some other random place. It wasn't purposeful; it just happened to be that over the years they worked there were some occasions where they had some paperwork as they walked out the door at the end of their workday. Usually, this would not matter at all, either to the employee or the employer. That is, of course, until there is a lawsuit between the two. Depending on the circumstances of how an individual came into possession of these materials there can be real consequences to the act of obtaining them, failing to maintain them in a legible, usable manner, and/or using them for an inappropriate purpose after the separation.
The first main thing to think about is how one came into possession of the documents. Was it similar to the situation described above: an unintentional happenstance that occurred over time in the usual course of that person's employment? Or, did the person intentionally, and without authorization, access company documents or electronic servers after the separation. There are federal laws in place that effectively make the unauthorized access of an employer's electronic data systems (think accessing company e-mail servers after separation, for example) an offense punishable by imprisonment, a fine, or both. If the documents were simply those that one already had in their possession before the separation, then this issue is avoided.
But, unintentionally having company documents in one's possession after separation does not mean the person can do whatever they want with the documents. For example, if you believe that you may sue your employer, then you must maintain the documents and safeguard them, so they can be used in litigation, by both sides, to determine the truth of the allegations. Basic fairness requires a party to avoid destroying documents that may be relevant to a claim or defense in anticipated litigation. In fact, whether the document would actually be something that was helpful to an employer defending a lawsuit or not would typically not prevent an employer from at least claiming the document was centrally important to their defense and that the Court should impose sanctions against the plaintiff for deleting the documents. Potential sanctions can include a Court requiring the employee plaintiff to pay a fine (monetary sanctions), have an adverse inference instruction read to the jury (i.e. it must have been bad for the case or it wouldn't have been deleted) or have other facts established against the employee (evidentiary sanctions), or, in egregious cases terminating sanctions (the case is dismissed). Additionally, where one has preserved the documents, they are generally required to return them to the employer and use the discovery process to properly obtain those same documents later in the case. This is a bit of a formality, but it is one Court's recognize to respect the employer's property interest in its documents.
Finally, and a very commonsense aspect of this issue, one cannot use the employer's trade secrets for their own advantage. What constitutes a trade secret can be a complicated issue, but company processes, contract documents or other sensitive material is best assumed to be something that should not be used for one's own commercial advantage. In fact, it may implicate third party privacy rights if an employee makes public sensitive documents containing private information, like medical or financial records.
The moral of this story can be summed up this way: if you're thinking about suing your employer and you have any documents whatsoever relating to that employment, save them. Do not delete them. Do not try to go back after the separation and obtain those documents you think are critical to showing you were terminated illegally. Just remember what they were, where they were, and anything other identifying information so your attorney can obtain them through the litigation process.
If you believe that you have claims against your employer for unlawful termination or unpaid wages, please contact our office to have your claims evaluated.