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Can whistleblowers take confidential documents for legal advice?

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Can whistleblowers take confidential documents for legal advice?

In a recent case, an employee removed confidential information from their employer in order to ‘attain legal advice’.

Employment Solicitor Chris Dobbs discusses the following tribunal case and the key takeaways for employers.

Confidential information & employment

For many employers, the threat of loss or theft of confidential documents is a  common concern.

Those familiar with the drafting of settlement agreements will know there is often a clause requiring the return of all confidential information by the employee.

Part of the reason is that such documentation has often been removed for the purposes of obtaining advice or for use as evidence in a claim.

Nissan v Passi

My Passi removed from his employer (and refused to return or delete) more than 100 confidential documents.

His argument was that he had removed them for the purposes of taking legal advice and that he did not trust the employer to disclose them in the event that he raised a whistleblowing claim.

What did the high court decide?

The ex-employer issued an injunction which was granted by the High Court on the basis that an ex-employee has no proprietary interest in the documents (they weren’t his!) and that they had to be returned.

The High Court ultimately said that the ex-employee had no grounds to try and pre-emptively decision what another party may or may not do during the disclosure stage of a case.

What are disclosure obligations?

Disclosure obligations in legal proceedings are relatively strict.

Often the obligation is to inform the other party of all and any documents in your possession which go to the facts of the case, whether helpful or detrimental to your position.

What did the judge say?

The judge was rather critical of the employee’s argument, concluding;

“Nothing that I have seen shows to me any seriously arguable case that the defendant had any right to use for the purposes of his own personal legal advice and without the permission of the owners of the documents their confidential documents.”

What does this mean for employers?

Chris Dobbs says: “For employers, the case is of course potentially good news but it is also a reminder of the importance of clearly establishing what you consider to be confidential information as well as employees’ obligations to return items on termination regardless of the circumstances.”

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