Monday, October 4, 2021

Whistleblowing and self-help discovery: lessons from Frances Haugen, the Facebook whistleblower

"Can she do that?" That was the question my wife asked me as we watched last night's interview of Frances Haugen, the Facebook whistleblower, on 60 Minutes.

The "that" was the revelation that Haugen stole a trove of confidential documents just prior to quitting her job to support her allegations against her employer.

"It depends," I told my wife, offering the stock lawyer answer to most questions.

Courts struggle with the issue of whether to protect the type of "self-help" discovery in which Haugen engaged. Some courts offer some level of protection to the employee. Other courts, however, use an employee's right to "blow the whistle" as a license to plunder the employer for evidence relevant to it. The analysis often hinges on the nature of claim(s) the employee is asserting, the type(s) of information the employee takes, and how the employee uses the information.

In Haugen's case, for example, there is a huge difference between providing the stolen information to the SEC or Congress (likely protected) versus providing it to the press (likely not protected).

Aside from not doing anything illegal to cause an employee to blow the whistle, the best protection you can offer against this type of self-help discovery by a whistleblowing employee is to have a strong non-disclosure agreement in place with all employees who have access to trade secrets or other confidential information, and to enforce that agreement consistently any time an employee or ex-employee breaches.

You may not be able to prevent your "Frances Haugen" from disclosing to government agencies, but you can do what you can to prevent all non-protected disclosures. And that is still very important, as otherwise you risk losing all protection over your sensitive data and information.

* Image by 愚木混株 Cdd20 from Pixabay