Is Self-Help Discovery by Employees Protected Activity?

“It is increasingly common for employees pursuing claims against their employer to use their access to files and databases to gather, in blatant violation of company policy, confidential documents and data that they believe are relevant to their claims. Counsel often becomes aware of this misconduct during an internal investigation or after litigation is commenced, often when the employee or former employee’s work computer is imaged and analyzed. But an employer may not become aware of misconduct until after the employee has filed a charge or a lawsuit, when confidential company documents are referenced in the charge or complaint, or even attached as an exhibit to a pleading.” This article discusses the rights of employers and employees in regards to information gathering for litigation as well as suggesting best practices for business owners to avoid these issues in the first place.