“But I’m a Whistleblower!”: Is an Employee Who Takes Confidential Documents Invincible?

Hypothetical, based upon a real fact pattern: Employee believes she has witnessed improper activities at her employer and begins preparing a qui tam whistleblower complaint alleging False Claims Act violations to file under seal. During the course of preparing the complaint, employee removes highly confidential electronic and original documents from her workplace, copying entire folders of sensitive corporate and personal information and downloading substantial electronic files from the company’s secure network. After the complaint is unsealed, the employer learns of the significant theft of information in violation of multiple agreements signed by the employee at the time of hiring. Those agreements prohibit the removal of confidential information and require its return when the employee leaves the company. The employee claims that the removal of this information is protected because it was in furtherance of her whistleblowing activity. 

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