# Question 28: The Files in Serena's Apartment

## Your role

You represent Serena Holt, a former payroll manager who reported wage falsification and retained company files. Advise what she may preserve or provide to counsel and regulators, what must be sequestered or returned, and what she must not disclose publicly or to a new employer.

## Governing law

Assume the following protected-activity and confidentiality rules apply:

1. An employee may engage in protected activity by reporting reasonably suspected legal violations to counsel, a regulator, or another authorized channel.

2. Limited retention of documents the employee lawfully accessed may be protected when the documents are reasonably necessary to substantiate the report, the employee takes no more than reasonably necessary, and disclosure is confined to counsel or an authorized regulator.

3. Protected activity does not authorize hacking, access beyond job permissions, mass collection, retention of unrelated confidential information, disclosure to the press, or use for competitive advantage.

4. A confidentiality agreement remains enforceable as to trade secrets, customer personal information, unrelated proprietary material, and other legitimately protected information, but it may not prohibit truthful reporting to a regulator or counsel.

5. Attorney-client privileged material remains privileged when an employee copies it without authority. Receiving counsel must stop review, sequester it, notify company counsel, and seek an agreed or court-supervised protocol rather than use the substance.

6. Personal notes created by the employee are the employee's property unless they reproduce protected company material beyond what is reasonably necessary for a legal claim.

7. An employer may discipline independent confidentiality or access misconduct consistently with comparator practice. It may not use an overbroad confidentiality theory as a pretext to punish the underlying report.

8. Once a dispute is anticipated, both sides must preserve relevant evidence. Return or deletion should occur only through a documented protocol that preserves forensic integrity and does not destroy evidence.

9. Counsel should analyze categories separately. The existence of one improper category does not strip protection from every lawfully retained item, and protected documents do not immunize unrelated taking.

## Facts

Serena reported to the labor agency that Avenor Services altered overtime records. Before resigning, she copied approximately nine gigabytes from her company laptop to an encrypted drive.

The drive contains:

**Category A**

Twenty-three payroll spreadsheets showing original and edited overtime entries, plus three emails from the vice president directing managers to “move excess hours into the next period.” Serena regularly accessed these files in her job.

**Category B**

A full customer export containing names, home addresses, bank-account data, and identification numbers for 14,000 customers. The export is unrelated to payroll. Serena had technical access because payroll and billing shared a reporting tool, but she never used the customer export in her work.

**Category C**

An outside-counsel memorandum labeled “Privileged and Confidential” analyzing wage exposure. Serena opened the first page, recognized the label, stopped reading, and copied the folder with the rest of the drive.

**Category D**

Pricing models, product source code, and a sales strategy for a service Serena's prospective new employer competes against. None concerns payroll or her report.

**Category E**

Serena's dated personal notes of meetings, including quotations from managers, and screenshots of two payroll screens she personally used.

Serena has shared nothing outside her current counsel. She wants to send the entire drive to the labor agency and a journalist “so the company cannot bury it.” Her prospective employer has asked whether she has “inside proof that Avenor cuts corners.”

Avenor demands immediate return and deletion of every file and threatens a trade-secret suit. It offers no preservation protocol and asserts that possession of any company file defeats Serena's retaliation claim.

## Assignment

Counsel Serena category by category on:

* Which materials may be preserved for the wage report.
* Which may be supplied to counsel or the labor agency and under what protections.
* The customer export and unrelated proprietary material.
* The privileged memorandum and receiving counsel's duties.
* Personal notes and screenshots.
* The journalist and prospective-employer requests.
* Avenor's return demand and the need for a forensic protocol.
* Confidentiality, trade-secret, access, and retaliation exposure.
* The concrete next communication and handling sequence.

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