The Journal of The DuPage County Bar Association

Back Issues > Vol. 24 (2011-12)

Self Help Discovery: Are You Protecting Your Client and Yourself?
by Jennifer Purcell

Across the nation, courts are struggling to address the increasing prevalence of “self-help discovery,” a term coined to describe evidence gathering done outside of the civil discovery process by a party to current or anticipated litigation.  In the employment context, “self-help discovery” more specifically refers to evidence gathering done by an employee who is currently engaged in, or otherwise contemplating, litigation against his employer.  The spike in self-help discovery in employment disputes is no doubt attributable to the average employee’s increased access to sensitive and privileged information.  Over the past decade, employers have traded in their file cabinets, bulk paper purchases, and bankers boxes jammed to the brim with physical copies of documents for smart phones, tablets, laptops, servers, and centralized electronic document storage.  As a result of this digital revolution, more employees have access to more information, and the transfer, copying or removal of that information can be done, even remotely, by an employee in just seconds. 

Self-help discovery poses a myriad of concerns to plaintiffs’ and defense counsel alike.  For instance, self-help discovery can expose a plaintiff to counterclaims and plaintiffs’ counsel to sanctions, disqualification, and disciplinary proceedings.  Similarly, improperly reacting to a plaintiff’s self-help discovery can increase a defendant’s exposure and otherwise give rise to additional claims by plaintiffs.  

Current Judicial Climate and Dialogue Surrounding Self-Help Discovery. 
In Quinlan v. Curtiss-Wright Corporation, perhaps one of the most prominent self-help discovery cases, the New Jersey Supreme Court considered the ethical and practical implications of a plaintiff’s self-help discovery in an employment discrimination lawsuit.[1]  Before the Court was Plaintiff Joyce Quinlan, who thought that her current employer was discriminating against her and other women who worked with her on the basis of their sex.[2]  Accordingly, Quinlan began collecting information and documents that she had access to in the “ordinary course of her employment,” and subsequently provided the information to her attorney.[3]  Then, after Quinlan’s counsel used some of the information provided by Quinlan in a deposition, Curtiss-Wright Corporation realized Quinlan had removed information from the company against established employee policy.[4]  As a result, Curtiss-Wright terminated Quinlan, who then filed an additional cause of action for Title VII retaliation.[5] 

After a jury trial and subsequent appeal to the New Jersey Appellate Division, the Supreme Court of New Jersey was charged with determining whether Quinlan should have been permitted to use the documents she acquired through self-help discovery. [6] After observing the conflict between employers’ right “to operate their businesses within the bounds of the law and legitimately expect that they will have the loyalty of their employees as they do so” and employees’ right “to be free of discrimination…and…to speak out when they are subjected to treatment that they reasonably believe violates that right,” the Quinlan Court began its analysis by compiling and analyzing the leading federal and state self-help discovery cases.[7]

At the outset, the Court observed that a majority of federal decisions on self-help discovery consider a variety of factors to determine if a plaintiff has committed self-help discovery, and if so, whether the self-help discovery warrants the imposition of sanctions or other disciplinary action.[8] Such factors include: the manner by which the plaintiff came into possession of the information; whether the plaintiff breached his duty of loyalty to the employer in acquiring the information; whether the plaintiff believed there was a risk of the employer spoliating the information; whether the plaintiff was engaged in protected activity under a relevant state or federal statute by acquiring the information; and whether the plaintiff’s removal of the information violated an employer’s privacy policy.[9]  Ultimately, the Quinlan Court declined to sanction Quinlan or Quinlan’s counsel after considering the above factors in a “totality of the circumstances” framework.[10] 

Conversely, in Lipin v. Bender, a New York court found that a former employee had committed impermissible self-help discovery that warranted sanctions.[11]  In this case, a former employee appealed a New York trial court’s order dismissing her sexual harassment suit against her former employer.[12]  In a hearing, Lipin came across an abandoned stack of documents left behind by opposing counsel, reviewed the documents, and gave the documents to her attorney for use in her litigation.[13]  The New York Supreme Court, noting that mere possession of documents is not a sufficient basis for use in litigation, held that dismissal was an “appropriate sanction” for the “highly improper manner in which defense documents were obtained by plaintiff.”[14]
Similarly, in Furnish v. Merlo, a federal district court sanctioned a plaintiff and plaintiff’s counsel for engaging in impermissible self-help discovery.[15]   Here, Furnish gathered confidential documents in the days immediately preceding her termination.[16]  Then, after her termination, Furnish sued Merlo for discrimination, and provided to her attorney the documents she removed from Merlo’s offices, including personnel agreements, a list of employee stock options, and a corporate compensation and salary list.[17] Despite the fact that Furnish made copies of the documents she was removing and left the originals at Merlo’s offices, and despite the fact that Furnish had access to the documents in the day-to-day course of her employment, the federal magistrate concluded the conduct of both Furnish and her counsel deserved sanctions.[18]

Sanctions were also levied against Plaintiff and his counsel in Glynn v. EDO Corporation. [19]  Plaintiff, Dennis Glynn, a former employee of EDO, began communicating with a friend who was a current employee of EDO.[20]  Throughout their email correspondence, Mr. Glynn’s friend emailed to him several documents containing information about proprietary product design plans developed by EDO, as well as several email discussions among EDO’s management.[21]  Subsequently, Mr. Glynn forwarded the information to his attorneys for use in his ongoing employment litigation, including his whistleblower and wrongful discharge claims.[22]  The Glynn Court ultimately found that Glynn inappropriately acquired internal, non-public information outside of the civil discovery process.[23]  Accordingly, Glynn and his counsel were sanctioned to the tune of $20,000.[24]

In light of the general divisiveness of the state and federal courts and the relative nascence of self-help discovery disputes in employment litigation, Quinlan offers the clearest guidance to date for attorneys faced with assessing the impact of a plaintiff’s self-help discovery.  Attorneys representing both management and employees should familiarize themselves with Quinlan analysis before deciding how to handle a self-help discovery situation.

Plaintiffs’ Counsel: Discerning Your Ethical Duties. 
Particularly for plaintiffs’ counsel, who will always be on the receiving end of evidence acquired through self-help discovery, consideration of the ethical landscape is paramount.  Self-help discovery disputes are an especially terrifying ground since, as the Quinlan Court properly observed, there is currently “…no clear consensus among the courts on what the appropriate factors are, or about how to weigh them…” [25]  Notably, even if an attorney avoids litigation sanctions, disqualification, or dismissal as a result of plaintiff’s self-help discovery, disciplinary action against the attorney is still possible.  For plaintiffs’ counsel, the three duties most implicated in self-help discovery disputes are: (1) respect for the rights of third persons; (2) fairness to the opposing party and its counsel; (3) and the general duty of competence. 

As a primary consideration, under Illinois Rule of Professional Conduct 1.1, a lawyer must provide competent representation to a client.[26]  This duty includes advising the client of potential counterclaims and other struggles likely to surface in contemplated litigation.  Where the potential plaintiff has used self-help discovery to gather documents, counsel should apprise the client of potential counterclaims an employer may assert, as discussed in detail below.  Where the employee is still currently employed by the potential defendant, counsel should also be sure to advise the client not to remove privileged information from the employer or provide counsel with such information. 

Second, Illinois Rule of Professional Conduct 4.4(a) prohibits an attorney from obtaining evidence in a manner that violates the rights of another party.[27]  Often, self-help discovery involves a plaintiff’s surreptitious removal of privileged or confidential information from the employer, which implicates an attorney’s obligations under Rule 4.4(a), and may obligate the attorney to return the information, notify defense counsel, or take other remedial action. 

Third, once apprised of the possible consequences of self-help discovery, potential plaintiffs’ knee-jerk reaction will often be to destroy the information gathered through self-help discovery.  However, Illinois Rule of Professional Conduct 3.4 warns that a lawyer may not counsel or assist another person to “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.”[28]  Thus, at the outset of representation, counsel should advise the potential client against spoliation and discuss the client’s preservation obligations.

Defense Counsel: Reacting to Self-Help Discovery Issues. 
Perhaps the simplest and most effective means to address self-help discovery issues is to avoid them altogether by advising employers of the plethora of technological means by which employees’ accessibility to information can be controlled and partitioned.  Unfortunately, many employers realize the need for accessibility constraints and policies only after they are faced with litigation wherein plaintiff has already amassed relevant and supportive evidence for his lawsuit.

Often, a plaintiff’s self-help discovery will give rise to several counterclaims.  Defense counsel, however, should proceed with caution; some courts have ruled that counterclaims brought by employers against employees who are engaged in litigation constitute retaliation.  For instance, in Burlington Northern & Santa Fe Railway Company v. White, the United States Supreme Court held that an employer who asserts a meritless counterclaim has engaged in unlawful retaliation against the employee.[29]  Thus, before advising a client to assert a counterclaim, defense counsel should first contemplate whether doing so will generate additional retaliation exposure for the employer.  If not, counterclaims worthy of consideration include, but are not limited to: an action under the Computer Fraud and Abuse Act; theft of intellectual property, misappropriation, and infringement; and common law contract claims.

The Computer Fraud and Abuse Act (CFAA), provides a private right of action to parties aggrieved by a violation of the CFAA.[30]  Specifically, for an employer to bring a claim against an employee under the CFAA, the employer must establish that the defendant-employee: (1) “knowingly and with the intent to defraud,” (2) accessed a “protected computer,” (3) “without authorization,” and as a result (4) caused a damage or loss of at least $5,000.[31] To develop and successfully assert a claim under the CFAA, defense counsel should first identify whether the employee obtained the information by accessing the employer’s computer system, and if so, whether such access was unauthorized. 

Another statute to consider is the Illinois Trade Secrets Act (ITSA).  The three elements of trade secret misappropriation are: (1) a trade secret existed; (2) the secret was misappropriated through improper acquisition, disclosure, or use; and (3) the owner of the trade secret was damaged by the misappropriation.[32]  Often, when a plaintiff has downloaded large amounts of information or copied entire sections of an employer's servers, some of the information obtained by plaintiff will likely contain a trade secret or other proprietary information giving rise to an ITSA claim and consequent damages. 

Also, several common law contract counterclaims may arise if the plaintiff and defendant are parties to an employment contract, or if plaintiff has otherwise read, agreed, and contracted with the employer to adhere to confidentiality, computer accessibility, or non-removal of information policies.  Under Illinois common law, the elements of a breach of contract claim are: (1) the existence of a valid and enforceable contract; (2) performance by the plaintiff; (3) breach of contract by the defendant; and (4) resultant injury to the plaintiff.[33]  Breach of contract, breach of duty of loyalty, and breach of fiduciary duty claims, for instance, may apply where a plaintiff has engaged in self-help discovery.

Generally, federal courts have inherent power to impose sanctions “to prevent abuses, oppression, and injustice.”[34]  Accordingly, where a party wrongfully obtains documents outside the normal discovery process, a number of different sanctions are available to the aggrieved party, including: dismissal of the action[35], the compelled return of all documents,[36] restrictions regarding the use of the documents at trial,[37] disqualification of counsel,[38] and monetary sanctions.[39]  

Ultimately, when reacting to self-help discovery conducted by a plaintiff, defense counsel has many responsive options, including developing policies to prevent self-help discovery at an employer’s offices, bringing counterclaims in instances of self-help discovery, and considering moving for litigation sanctions.

While the axiomatic adage “possession is nine-tenths of the law” may hold true in most fields, in employment disputes, mere possession of documents is insufficient to justify their use in litigation, and even worse, could generate liability and additional exposure for parties.  However, the assiduous attorney can deftly navigate the labyrinthine ethical and practical implications of self-help discovery by remaining keenly aware of his ongoing ethical duties to his client and third parties, thoroughly advising his client on the consequences of self-help discovery, and strategically reacting to instances of self-help discovery abuses.

[1]Quinlan v. Curtiss-Wright Corp.  8 A.3d 209 (N.J.,2010).
[2]Id. at 212.
[3]Id. at 213.
[7]Id. at 228.
[9]Id. at 224.
[10] Id.
[11] Lipin v. Bender 193 A.D.2d 424  (N.Y., 1993).
[14]Id. at 343.
[15]Furnish v. Merlo, 128 Lab. Cas. (CCH) ¶ 57,755 (D.Or. Aug. 29, 1994).
[19]Glynn v. EDO, 2010 WL 3294347 (D. Md. Aug. 20, 2010).
[25]Quinlan, A.3d at 266-7.
[26]IRPC 1.1.
[27]IRPC 4.4(a).  See also ABA Model Rule of Professional Conduct 4.4(a).   
[28]IRPC 3.4
[29]Burlington Northern & Santa Fe Railway Company v. White, 548 U.S. 53, 57 (2006). 
[30]18 U.S.C. § 1030.
[31]18 U.S.C. § 1030(a)(4). 
[32]S.H.A. 765 ILCS 1065/2(b). Liebert Corp. v. Mazur, 293 Ill. Dec. 28, 827 N.E.2d 909 (App. Ct. 1st Dist. 2005).
[33]Henderson-Smith & Associates, Inc. v. Nahamani Family Service Center, Inc.  323 Ill.App.3d 15, 752 N.E.2d 33 (Ill.App. 1 Dist.,2001).
[34]Gumbel v. Pitkin, 124 U.S. 131, 144 (1888). 
[35]See Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995); Perna v. Electronic Data Systems, Corp.,  916 F.Supp. 388 (D.N.J.,1995).
[36]See, e.g., Herrera v. Clipper Group, L.P., No. 97-CIV-560 (S.D.N.Y. May 6, 1998).
[38]Herrera v. Clipper Group, L.P., No. 97-CIV-560 (S.D.N.Y. May 6, 1998). 

[39]Fayemi v. Hambrecht & Quist, Inc., 174 F.R.D. 319, 324-27 (S.D.N.Y. 1997). 

Jennifer Purcell is an associate attorney at The Law Offices of Trent & Butcher in Carol Stream, Illinois, where her practice is concentrated on litigating civil rights, labor, and employment disputes.  She is a member of the Dupage County Bar Association, as well as several pro bono service and civil rights organizations.  Ms. Purcell received her Juris Doctorate from Chicago-Kent College of Law in 2008 and her undergraduate degree from Western Kentucky University.  

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