Can an Employee Keep Copies of Documents as Evidence of Claims Against an Employer?

April 10, 2024

By: Colin A. Walker and Josh I. Berry

Let’s say an employee is being sexually harassed by the boss. The employee has complained to HR, but to no avail, and, finally, the employee has had enough. The employee quits and goes to the nearest EEOC office to file a charge of discrimination. But, the EEOC investigator wants to see evidence. The harassment took the form of emails and text messages with sexual overtures, promises of advancement in exchange for sexual favors, and repeated rebuffs and requests to stop by the employee. The employee also filed a complaint with the HR Department in writing.  And, there were emails from other employees sympathizing with the employee and offering to serve as witnesses. But, the employee doesn’t have access to any of this because the employer required them to return all company property, information and documents, and promptly shut off access to the email system when the employee quit.
This situation is all too common and, although litigants are required by law to preserve all evidence of claims and defenses when they know that litigation may be imminent, it can be difficult to prove that an employer has failed to comply with these laws. In extreme cases, litigants have even intentionally destroyed evidence. An employee in this situation might well be reluctant to trust that an employer will preserve the evidence. 
The good news is that an employee in this situation need not trust the employer. Many courts have held that an employee has a “privilege” to keep copies of documents, which support discrimination claims. Thus, an employee in this situation would be on firm ground to keep copies of documents, such as those mentioned above. 

However, employees who think they have claims should be very careful not to take this too far for two main reasons. First, Courts have ruled against employees in situations where an employee either (1) retained a trove or unrelated documents or (2) obtained the documents through an unauthorized or intrusive search of the employer’s records. Second, Courts have held that the right to keep copies of documents evidencing claims is limited and have upheld terminations based on misappropriation of documents even when some of the documents supported claims.  Laws such as the Uniform Trade Secrets Act prohibit misappropriation of trade secrets. Employers often can bring other claims against employees for taking company information, even if it does not constitute a trade secret. And, many employers require employees to sign confidentiality agreements, IP agreements, and similar contracts which could support claims against an employee who takes company information. 
The courts have reconciled these inconsistent interests through a fact intensive analysis hinging on the following: 

  • What the Employer’s Policy says; 
  • Did the Employee sign any sort of confidentiality agreement; 
  • Did the employee simply copy his/her own emails or was the copying more invasive;
  • Was the employee saving/copying only that information to assist in a discrimination lawsuit;
  • Did the employee return the emails upon being asked by the employer; and
  • Did the emails contain personal or proprietary information.

In the hypothetical situation above, the employee is probably on firm ground. The employee kept copies only of documents evidencing the harassment; only kept copies of documents to which the employee was a party or had authorized access; and the information did not contain personal or proprietary information. Even if the employer had strict policies on confidentiality and a strong confidentiality agreement, copying such documents would probably be seen as privileged preservation of evidence of a harassment claim.
As can be seen, however, this can be a close call in many cases and the consequences for employers and employees can be severe. If an employer fails to preserve evidence, a court could find that it committed unlawful “spoliation” of evidence and sanction it in a number of ways, often ordering it to pay the employee’s attorneys’ fees. In egregious cases, a court could impose an evidentiary inference that the evidence which was not preserved would have been favorable to the other side, and, in very serious cases, a court could enter default judgment against the non-compliant party. For the employee, exceeding the right to copy documents evidencing claims could result in termination and liability for misappropriation of trade secrets and similar claims. In these situations, employers and employees are well-advised to consult competent legal counsel.