Connie Bertram is head of Cooley’s Washington, D.C., employment and labor and government contractor compliance practice groups, and a member of the firm’s litigation department.
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.
Consider the following scenarios:
An
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