Category: Document Retention

Retention of Employer Documents by Whistleblowers Part 8—Retaliatory Counterclaims

As previously discussed, the improper collection, retention, and use of an employer’s documents can pose serious problems for a whistleblower’s subsequent legal claims.  Improper retention of employer documents can also subject the whistleblower to civil and/or criminal liability.  Very often the possibility for such liability arises in the context of a retaliatory counterclaim brought by…




Retention of Employer Documents by Whistleblowers Part 7—The Negative and Destructive Consequences

While many whistleblowers may feel that the only way to prove their case is by collecting and taking the documents from their employer that prove the wrongful conduct that they are blowing-the-whistle on, such conduct can have serious negative consequences for any future legal claims by the whistleblower and may subject the whistleblower to personal…




Retention of Employer Documents by Whistleblowers Part 6—Retaining Documents as Protected Activity Under the Dodd-Frank Act

One of the most recent and broad whistleblower laws enacted at the federal level was contained in the Dodd–Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).  Although there is little caselaw on the statute and the protections it may provide for whistleblowers who collect, retain, and disclose information evidencing wrongful conduct, the Dodd-Frank…




Retention of Employer Documents by Whistleblowers Part 5—Retaining Documents as Protected Activity Under the False Claims Act

A whistleblower’s acquisition and dissemination of documents may also be protected or privileged under the recently strengthened anti-retaliation and whistleblower provisions of the False Claims Act (FCA). The FCA arguably provides the broadest protection for individuals who collect and retain documents that relate to their employer’s wrongdoing.  Under the FCA, retention of documents has been…




Retention of Employer Documents by Whistleblowers Part 4—Retaining Documents as Protected Activity Under Discrimination Statutes

Under many anti-discrimination statutes the very act of collecting and retaining documents may itself be protected activity, or privileged, if certain criteria are met.  See, e.g., Kempke v. Monsanto Company, 132 F.3d 442 (8th Cir. 1998) (acquiring documents relating to age discrimination, delivering the documents to attorney, and directing employer to contact attorney regarding documents…




Retention of Employer Documents by Whistleblowers Part 3—Using the Information

After the whistleblower has already collected the documents, and assuming that he or she still retains the documents, the next question is what can you do with the information collected? The type of information may constrain how the documents may be used.  For instance, many courts are hesitant to allow a plaintiff to use privileged…