By Lawrence P. Schaefer |
Potential clients often come to Schaefer Halleen with documents from their past or current employer which “proves their case,” or are otherwise relevant to the potential legal claims at issue. In a similar vein, current employees often offer to secure sensitive, confidential documents, to help prove their claims even before a suit is commenced, especially when they are a current employee with access to these documents. In these common scenarios, we invariably caution our clients or potential clients to SLOW DOWN, and not create potentially devastating issues which could undermine an otherwise strong case.
The Legal Principles of Pre-Litigation Discovery
Two competing, and sometimes conflicting, legal principles have to be effectively balanced in “pre-litigation discovery,” and if this doesn’t occur appropriately, an otherwise strong case could be harmed or even destroyed.
First, an alleged victim of discrimination or retaliation is engaging in “protected activity” when consulting with counsel and securing documents relevant to his or her claims.
Second, an employer has a right to treat its internal documents as “confidential” and proprietary, not to be shared with anyone but the intended recipient, and to instruct employees that the internal email communication system is for work communications only, and these messages are not to be shared with anyone but the intended recipients.
But where does one principle give way to the other, and is that line easy to identify? The answer can be very situation-specific, and should lead any attorney to err on the side of caution. There are, however, many common scenarios which clearly fit within one or the other principle.
Because Minnesota employees have a right to their personnel files, any document (such as a performance review, contract, disciplinary record, compensation history, benefit information) which the employee may have retained throughout their employment and would otherwise be a part of this file (i.e. be defined as a “personnel record” under Minnesota law), these documents can and should be freely shared with legal counsel. This category generally encompasses the majority of documents shared in early meetings, and taking possession of such documents or making reference to them in communications with the other side should not raise any concerns. This assumes, however, that these documents relate to the client. If they concern a third party, the company could likely object to the client having and sharing the document, and the safest course is not to review this information, but wait until formal discovery to seek it from the company.
Copied or forwarded email communications, however, can be more problematic. If the client is a direct or cc’ed recipient of the email, and the communication is not attorney-client privileged, then sharing the communication with counsel is likely permissible. The company, however, may have an internal policy (or it may be stated on the email itself in the disclaimer line) that these communications are considered confidential and/or proprietary, and are not be to shared with anyone not designated as a recipient. The safest practice in this circumstance is to have the client catalogue or list the relevant communications, and seek production of them from the company in formal litigation, or an agreement that they can be provided directly by the client without violating any workplace rules.
On a related topic, clients should never communicate with legal counsel using the company email system, nor should they forward emails to legal counsel using this system. In the former category, the attorney client privilege is likely waived, and in the latter, the client is effectively notifying the employer of this communication, as well as the content of what is forwarded. E-mail communications with counsel should always occur through a secure, private server, and a private account where the client is the only recipient (i.e. not a shared account).
Private or Confidential Documents
Finally, clients should never be encouraged to try to get access to private, confidential documents which they have no right to access, or to ever share attorney-client work product communications from corporate counsel. The same is true for other sensitive information, such as HIPAA- protected information in the medical field. While potentially exposing wrongdoing can sometimes be a permissible disclosure of such information, the safest course it to wait until litigation to seek these documents from the opposing side. Indeed, a company can legitimately terminate a client for violating workplace rules in these areas, either defeating the underlying claim or dramatically limiting damages.
Effectively navigating through these sometimes competing principles is essential to effective pre-litigation advocacy. The attorneys at Schaefer Halleen are well trained to do just that.