Current Employees Who Are Seeking Information on Lawsuit
Despite the risk of retaliation, employers that are being sued by current employees should be aware that those workers may be trying to gather information for use in their lawsuit and may have been instructed to do so by their attorneys, Kun said.
"Except in unique circumstances, it is wise to educate managers not to talk about the lawsuit or the issues in it with those employees, even when those employees initiate the conversation," according to Kun. "Even if managers are careful about what they say, their statements could be misconstrued or worse, twisted," he said. …
If employees involved in litigation want documentation for use in their lawsuit, their attorneys must request it as part of the litigation, Kun said. "The employees are not entitled to help themselves to the employer's documents. This is particularly true of confidential information."
If an employer discovers that an employee is taking documentation for use in the litigation, it should contact its attorneys to promptly address it, he added. "Such conduct not only could be grounds for termination of the employee, but for sanctions or disqualification of the employee's attorney," he said. "Generally speaking, attorneys are not permitted to accept stolen property, much less use it to their advantage in litigation."
Employers should be particularly sensitive to employees who have access to confidential information and documents through the employer's computer system, he emphasized. "Generally speaking, employees are not entitled to search through an employer's computer system to look for information for their litigation," he noted.
Employees also are not entitled to give their lawyers their ID and password information so that their attorneys can go searching through the employer's computer system themselves to look for documents for their case, Kun added, saying he caught this in a class action several years ago.
"If you learn that has occurred, you should contact your attorneys promptly," he recommended. Not only could it be grounds for termination of the employee, it also could be grounds for sanctions and disqualification of the attorney—perhaps even criminal charges or an ethics complaint.