Sixth Circuit | OK to fire employee who shares confidential corporate documents with her attorney

The Sixth Circuit recently condoned the firing of a woman who shared confidential corporate documents with her attorney.  In a surprising decision, the Sixth Circuit upheld Cincinnati Insurance Company's firing of a woman for sharing in-house documents with her attorney.  The plaintiff was a member of a class action alleging discrimination by her employer, CIC.  She claimed that after joining the suit, she was subjected to intense retaliation and had turned over every in-house document she had in her possession to her attorneys.  The case is Niswander v. Cincinnati Insurance Company.

When her attorneys asked her to forward any evidence she had documenting her relationship with the company, in order to respond to CIC's discovery requests, Ms. Niswander included corporate in-house documents which CIC alleged violated its Privacy Policy and Code of Conduct (because they included policyholder information).  CIC fired her for this breach, even though the documents were disclosed only to her own counsel and CIC.  The Court held that she should have preserved the pertinent information in some other manner and refrained from providing these documents to her attorneys.

This case, arising in an apparently unconvincing factual context, is a trap for the unwary employee and her attorney.  The three judges identified a six-factor test to be considered when the dissemination of confidential documents is under consideration.   Although they could not agree on how to apply that test, the judges stressed, in particular, the materiality of the documents to the employee's underlying claim and the availability of alternative means of documenting the evidence.