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When Whistleblowing Breaks the Law, Are Your Clients Protected?

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By George Khoury, Esq. on July 25, 2017 3:58 PM

Whistleblower cases can present legally fascinating constitutional law actions involving a few different First Amendment issues. When a whistleblower discloses information to the public, or an appropriate agency with oversight, not only are there constitutional protections, there are frequently statutory protections as well.

But what happens when that evidence is illegally obtained, or the disclosure of that evidence violates another law? Will your client's claim survive?

Violating HIPAA Trumps Whistleblower Retaliation

A recent case out of the Eastern District Court of California provides a good example of when a whistleblower's prohibited disclosure will provide a sufficient, independent justification for termination. Eric Reininga filed suit after being terminated for disclosing information about an inmate that died due to the institution's alleged gross negligence.

Unfortunately, while Reininga arguably was "doing the right thing" by disclosing sensitive information surrounding the inmate's death, the information he disclosed violated privacy duties under HIPAA. That violation of HIPAA, the court ruled, provided sufficient evidence that the employer's true reason for firing was not a pretext for whistleblower retaliation.

Notably, while Reininga lost his job and case, the family of the deceased inmate was able to obtain a sizable settlement after his disclosure.

What to Do When a Client Steals Evidence?

Proceed headstrong, but with caution. Courts have split on the issue over a variety of factors, including whether the legal violation was contractual or statutory. It's a winnable fight, but one that needs to be carefully assessed and researched based on each specific court's prior rulings on the issue.

If you didn't know how your client obtained the evidence before you took the case on, you might feel betrayed. When a client brings you a stack of documents, or sends you a pile of emails, from their employer before being terminated, or just after, it may be a bit frightening to think that an employer can use that as an independent basis for termination, or even file a counterclaim. If you plan to use any of those documents, you're probably going to have to disclose them, even if it causes some detriment.

What's worse is the potential conundrum you'll need to explain when you try to request copies of the questionably sourced documents from your defendant and they don't get disclosed. It can require some serious acrobatics if it turns out that you have the originals. Fortunately, when it is a compelling issue of public concern, and there is no harm to the public by the act of taking the documents, courts will be more inclined to overlook how an employee obtained evidence.

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