The Cincinnati Insurance Company terminated Kathleen Niswander after she provided proprietary documents to her lawyers in a class action lawsuit brought against the CIC. In determining whether or not the documents shared were confidential, the court looked at six factors:
- How the documents were obtained.
- To whom the documents were produced.
- The context 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.
- Why the documents were produced, including whether the production was in direct response to a discovery request.
These factors are designed to take into account the employer’s “legitimate and substantial interest in keeping its personnel records and agency documents confidential” and yet protect the employee’s alleged “need for surreptitious copying and dissemination of the documents.” Although the court ruled that the documents were in fact confidential, and that her lawyer should have obtained them through discovery, it noted that there might be occasions, such as “when an employee reasonably believes she is being subjected to discrimination and takes confidential documents to an attorney for advice and counsel” that would be reasonable.
(Jefferies v. Harris County Cmty. Action Ass’n, 615 F.2d 1025, 1036 (5th Cir. 1980))