How far can an employee go in removing employer documents to prove a case?

An important part of the decision in Erhart v. BofI Holding, Inc. relates to an issue that we occasionally confront in employment practice cases, namely what happens when an employee steals confidential documents to use in his lawsuit against the company?

The issue is more complicated than it seems.  The American Bar Association standards (Rule 8.4 and Rule 3.4) prohibit the use of evidence that has been wrongfully appropriated by a witness or a party.  That would seem to argue against making use of documents stolen from an employer by a potential plaintiff.  On the other hand, there is a societal interest in promoting whistleblowing to ferret out corporate wrongdoing, and frequently the best evidence of the wrongdoing is contained in a company's computer files or documentation.

That was the issue confronting the federal court in this case.  The judge issued a fairly interesting ruling that splits the baby neatly.  The court ruled that the public policy in favor of whistleblower protection outweighs the interest in the enforcement of a nondisclosure agreement or even corporate nondisclosure policies.  But not completely.  A whistleblower may not appropriate wholesale a company’s files or information.  Instead, the court noted that because Erhart in this case took only files that were related to his claims, he would still operate under the protection of the court’s ruling.  Had Ehrhardt vacuumed up the entire contents of a disk drive randomly, the court likely would have sustained the counterclaims against him for breach of contract, breach of fiduciary duty, and trade secret violations.

Accordingly, if you're going to take your employer's documents with you when you leave, don't pull down everything you can carry; remove only the things related to the alleged wrongdoing."Pigs get fed, hogs get slaughtered."