What to know about documenting evidence
Your ability to make a difference is your ability to prove it.”
“The better your evidence, the greater the probability that the Justice Department will join your team and join in your False Claims Act case, significantly increasing the likelihood that you will win the claim.” Stephen Martin Kohn, The New Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself (2017), p. 272
“Courts that have sanctioned employees for copying confidential documents have noted that if an employee can demonstrate that the copied materials would have been ‘destroyed,’ and their conduct was undertaken to ‘preserve evidence,’ its decision may have been different.” Kohn (2017), p. 262
Statements from Google about the firing of employees
“We dismissed four individuals who were engaged in intentional and often repeated violations of our longstanding data security policies, including systematically accessing and disseminating other employees’ materials and work. No one has been dismissed for raising concerns or debating the company’s activities.” Makena Kelly, Verge (December 9, 2019)
“Margaret Mitchell, the other co-leader of the Ethical AI team and a prominent researcher in her own right, was among the hardest hit by [Timnit] Gebru’s ouster. The two had been a professional and emotional tag team, building up their group — which was one of several that worked on what Google called “responsible AI” — while parrying the sexist and racist tendencies they saw at large in the company’s culture. Confident that those same forces had played a role in Gebru’s downfall, Mitchell wrote an automated script to retrieve notes she’d kept in her corporate Gmail account that documented allegedly discriminatory incidents, according to sources inside Google. On January 20, Google said Mitchell had triggered an internal security system and had been suspended. On February 19, she was fired, with Google stating that it had found ‘multiple violations of our code of conduct, as well as of our security policies, which included exfiltration of confidential, business-sensitive documents.’” Tom Simonite, Wired (June 8, 2021)
“You can access documents that are a part of your job responsibilities, but you can’t go on ‘fishing expeditions’. Be targeted. Use a scalpel, not a hatchet. One client downloaded an entire database and they got in trouble. Only take the information that is relevant to your case. Don’t go out of your way to document other misconduct in the company. One client faced criminal charges for stealing his boss’ password to access damaging information.” Mary Inman, Partner at Constantine Cannon LLP
Checklist
- Make sure you have detailed evidence. Both lawyers and reporters will ask for evidence so having detailed and organized records will make the whole process easier for you.
- Make your own detailed notes. Make sure to take notes in the moment instead of trying to recreate memories later. Useful pieces of evidence include:
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- Dates
- Of illicit activity
- Of any internal attempts you made to address the issue
- Of any retaliatory behavior from the company
- Patient ID numbers (if applicable)
- Training records
- Standard operating procedures (SOPs)
- Internal policies
- Violations of regulatory codes
- Employment documentation
- Past complaints you’ve made
- Dates
Tips for documenting evidence
- Companies can tell when you take a screenshot, so taking a picture on a non-company device, or even a pseudonymous device, is better than documenting anything on the computer itself.
- Use a small tablet with Wi-Fi turned off instead of a phone; this way there will be no location information stored as metadata in the photos. Make sure to remove any metadata from the pictures if possible.
- Make sure the photos don’t have any identifying information in them; this could be your hand, your reflection on the computer screen, images of your office, or other identifying information or marks on your computer screen.
- Using a shared account to log in to gather info can help protect you, but be aware of any blame you may be passing along to others.
- “Backflushing” a document, meaning sending it legitimately to others in the company, such as attached to a regular and relevant report, is another way to reduce targeted suspicion on you by increasing the amount of people who would have credible access to the information.
- You can convert Word and other text files to PDFs, then export each page as a JPEG image. Once you’ve done that, you can use an image editor to draw black boxes over sensitive data that may cause undue risk to you or others. If you try to redact the documents from within the PDF, it will be done in layers, leaving the actual data underneath the black boxes. JPEG does not have layers. Once complete, you can share the pictures as a set. You can do this with actual images as well.
Tim Schwartz, A Public Service: Whistleblowing, Disclosure and Anonymity (2019)
“If you go to a whistleblower lawyer, they will ask you to take contemporaneous notes, much like a diary, to document the wrongdoing as it is occurring. Those notes are arguably protected because they were made at your attorney’s direction. Notes that you take in the ordinary course of your job in order to perform your job, however, are not likely to be protected.” Mary Inman, Partner at Constantine Cannon LLP
“Be extremely careful with documents that the target may claim are protected by its attorney–client privilege. While you may be entitled to have copies of those documents in your possession, refrain from providing them to your attorneys or any member of the government enforcement team. Doing so may taint both your attorneys and the government team and require that they recuse themselves from the case. If you have questions about which documents are privileged, tell your attorneys and they can hire a taint attorney to screen the documents and only provide your attorneys with those they have cleared as not privileged.” Mary Inman, Partner at Constantine Cannon LLP
“Information stored with your attorney may be protected from search and seizure through attorney-client privilege” Schwartz (2019), p. 186
Recording conversations may help, but there are specific laws for what is allowed in each state and if you need all parties or just one party to consent to being recorded. This document and this website give general guidance on whether a state is a “one party” or “all party” state. To be sure of the law in a particular state, speak with a lawyer.
“Don’t delete any evidence, including documents that present you in a negative light. Tampering with evidence is illegal and creates legal exposure for yourself. Heed the old adage: The cover-up is worse than the crime.” Mary Inman, Partner at Constantine Cannon LLP
If you take a computer or open files without permission it could be a cyber crime or civil violation.
If you take the files themselves, if it is printed, it could be a theft of intellectual property. Companies can record who prints and from where, so be careful.
Misuse of computer systems by you or by the parties committing the wrongdoing may be reported to the FBI.
There are state-specific laws about misuse of computers so it is best to talk with a lawyer about what you may do on a computer to gather evidence.
“Be careful that any e-mails you maintain in a personal account do not include the company’s proprietary information such as intellectual property and trade secrets, or privileged information such as communications between the company and its attorneys” Tom Devine & Tarek F. Maassarani, The Corporate Whistleblower’s Survival Guide: A Handbook for Committing the Truth (2011), p. 76
Don’t use company tech resources for gathering information. Using a company’s device could invalidate any attorney-client privilege for that information, which could include your identity.
Be prepared to be locked out at any moment if someone is aware you are collecting information.
“To prevent companies from destroying evidence, it is a good practice to compile a detailed list of materials that should be subpoenaed while still working.” Kohn (2017), p. 285
If you have enough information to initiate a government investigation, the government can then issue subpoenas for anything else they need.
Communicate on Signal, ProtonMail, Tor, etc. For example, you can take a picture with your personal phone and send the pictures over ProtonMail.
Balancing Test
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In evaluating how to deal with improper document removals, courts apply a “balancing test.” In past decisions, the below questions have been applied, so it is good to think through the answers when assessing what evidence to gather. Steve Kohn’s book lays out “six factors that should be considered when weighing this balance:” Kohn (2017), p. 123
- How were the documents obtained? Did the employee have proper access to the documents, or did the employee obtain them in an innocent manner? Did the employee rifle through company files and surreptitiously copy the material?
- To whom did the employee show the documents? Were they shown to coworkers and friends, or were the documents just provided to government investigators?
- What was in the documents? Was the information the type that should be kept strictly confidential and that clearly should not have been copied?
- Why were the documents obtained and why were they produced?
- What was the employer’s privacy or confidentiality policy?
- Could the employee have obtained the material in a manner that did not violate company policy?
Stephen Martin Kohn, The New Whistleblowing, A Step-By-Step Guide to Doing What’s Right and Protecting Yourself (2017)
