Retaliation: Sharing Confidential Documents with Attorney Not Protected

A tough part of blogging is succinctly describing complex legal holdings in a sentence or less. Today's title may be a tad misleading. In Johnson v. Portfolio Recovery Associates, LLC, the Eastern District Court of Virginia held that Plaintiff sharing confidential documents with his attorney was not a protected activity... in this situation.

Mark Johnson was terminated from his job for violating his confidentiality agreement. He disclosed a confidential document... to his attorney. He then filed a charge of race discrimination with the EEOC but only after he was terminated. He included claims of retaliation based on his termination.

Obviously, retaliation claims are tough when you are fired before your employer knows of your discrimination claims! It is possible, however, to have a retaliation claim for employer-conduct before you file a formal charge. Johnson claimed sharing the confidential docs with his attorney was a protected activity, but the Court ultimately disagreed.

The Court relied on a 6-prong analysis enunciated in Niswander v. Cincinnati Ins. Co., a 2008 Sixth Circuit case:

(1) how the documents were obtained,
(2) to whom the documents were produced,
(3) the contents of the documents, both in terms of the need to keep the information confidential and its relevance to the employee's claim of unlawful conduct,
(4) why the documents were produced, including whether the production was in direct response to a discovery request,
(5) the scope of the employer's privacy policy, and

(6) the ability of the employee to preserve the evidence in a manner that does not violate the employer's privacy policy.

The Court clearly relied most heavily on the sixth prong, finding that Johnson could have preserved the evidence without disclosing the document to his attorney. The Court also notes that Johnson could have provided the information in a synopsis form without full disclosure. Conclusion: sharing confidential documents with his attorney was not protected in this instance.

This presents a dangerous trap for employees (and their attorneys!). Employees should think long and hard before divulging confidential documents, even if its to their attorneys. In this case, the Sixth prong was almost solely determinative. If there's a way to proceed without full disclosure of the document, that may be the safest route.