[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
Campbell v. Aberdeen Providing Ground Federal Credit Union, 2025 WL 608046 (D. Md. Feb. 25, 2025)(Bredar, J.), is an employment discrimination case.
At its most general level, the holding was that “a litigant may not invoke the courts to assert their legal rights, then engage in extralegal conduct.” At issue was ESI that the employee obtained from an employer’s computers and attached to her Complaint, in violation of the employer’s ethics policy.
…a litigant may not invoke the courts to assert their legal rights, then engage in extralegal conduct.
Campbell v. Aberdeen Providing Ground Federal Credit Union, 2025 WL 608046 (D. Md. Feb. 25, 2025).
I previously addressed this issue in “Civil Vigilantism” – Sanctions for Surreptitious “Self-Help” Investigation (Mar. 9, 2023)(“Courts have recognized that sanctions may be imposed for improperly obtaining evidence.”). One court called it “civil vigilantism.” Id.
In Campbell, the employee wrongfully obtained documents from her employer, in violation of the employer’s information governance policy, and she attached it to her Complaint. Defendant filed a “Motion to Strike Purloined Information.” The Court exercised its inherent power to preclude affirmative (but not impeachment) use of the information. It wrote:
Pursuant to its inherent authority, the Court will strike the improperly used material from the pleadings, and Campbell will be barred from using it as evidence in this litigation, except for purposes of rebuttal or impeachment.
Campbell v. Aberdeen Providing Ground Federal Credit Union, 2025 WL 608046 (D. Md. Feb. 25, 2025)(Bredar, J.).
The sanction applied to all wrongfully obtained information, “even if it would otherwise be discoverable.” In the Court’s words, the sanction alleviated prejudice to the employer and “signals to Campbell and other litigants that one must deal honestly before the courts.” The employer’s information governance policy was central to the holding.
While there were several types of information at issue, in brief summary, one item the employee submitted was a table with “the name and salary details of the employee who was hired, over Campbell, into the managerial role….”
The employer asserted that the information was obtained through unauthorized access and improperly shared. It submitted an affidavit stating that employees are not permitted to access information outside of their work responsibility and it submitted its ethical standard that:
All information concerning the credit union, members or vendors obtained in the course of performing the duties of an employee, board member and volunteer is strictly confidential and shall never, during active service or thereafter, be disclosed to any third party or used in any manner other than the normal business activities of the credit union. [Emphasis added].
Id.
Further the affiant stated that personnel records were maintained confidentially “on a separate computer data section.” The affidavit further recited that the employee was “expressly” barred from accessing the records. The employee admitted – “obliquely” – to accessing other employees’ personnel records to build her discrimination claim. The employer sought to strike and seal the record and attorneys’ fees.
The employee denied wrongdoing. First, “she says she is ‘the administrator of the Human Resources Information Systems,’ a role that affords her “access to all systems and personnel files” at the organization…. She alleges this access is ‘necessary in fulfilling [her] daily tasks’ and ‘allows [her] to see the details of the documents being provided as evidence in this lawsuit.’” Second, she argued that the employer would have altered the records if it knew of her claim. Third, she said that she took only “valid and factual” information.
The Court wrote:
Aberdeen FCU’s Motion to Strike will be granted in part and denied in part. Under the inherent authority of the federal courts to safeguard the integrity of their proceedings, this Court may prohibit a litigant from using information they obtained and/or used improperly, even if the relevant acts occurred prior to the litigation. Based on the record the parties have assembled, the Court finds that Campbell improperly used confidential materials she found on Aberdeen FCU’s computer systems. She will be barred from using those materials as affirmative evidence in her case, even if the materials would have been obtained through discovery. [Emphasis added].
Id.
No other sanctions were imposed.
The Court relied on its inherent authority after finding that Fed.R.Civ.P. 12(f) was inapposite. It did so because the material was not “redundant, immaterial, impertinent, or scandalous” under that Rule.
The Court wrote that its inherent power in this situation was “robust,” stating: “District courts have repeatedly used their inherent powers to address situations in which litigants offer relevant evidence obtained through wrongful means outside the discovery process.”
It was “plain to the Court that Campbell improperly used confidential materials she obtained from Aberdeen FCU’s computer systems.”
And, that is where the information governance policy became central:
So, whether or not Campbell was authorized to access the information she pled—an issue the parties dispute—the Court finds Campbell’s use of that information clearly to violate the Aberdeen FCU ethics rules. [Emphasis in original].
Id.
So, whether or not Campbell was authorized to access the information she pled—an issue the parties dispute—the Court finds Campbell’s use of that information clearly to violate the Aberdeen FCU ethics rules.
Campbell v. Aberdeen Providing Ground Federal Credit Union, 2025 WL 608046 (D. Md. Feb. 25, 2025)(Emphasis in original).
The Court rejected the employee’s claim that it was permissible to take the ESI because the employer would have spoliated it. After noting that the employee did not make out a convincing argument, the Court wrote that: “Even if Campbell’s fears were well founded, she should have brought them to the Court’s attention, not taken matters into her own hands.” It added:
And while some discovery may be informal, occurring outside the dictates of the Rules and related orders, see, e.g., Duprey v. Scotts Co. LLC, 30 F. Supp. 3d 404, 409 (D. Md. 2014), in no case would Campbell be allowed to exercise unilateral, unauthorized self-help of the kind she exercised here.
Id.
Further, the Court rejected the employee’s argument that all she obtained was accurate facts:
[T]he Court declines to craft truthfulness or harmlessness exceptions to the general rule that litigants must play fair—which here means complying with all preexisting legal duties, including those in the ethics policy. The Court likewise rejects Campbell’s contention that the information is harmless. Her pleadings contain information whose unauthorized publication offends general notions of privacy—information like coworkers’ salary data and educational history.
Id.
Again, the information governance policy was central: “Given the language of the ethics rules, she had every reason to know this was not permitted…. She should not enjoy the fruits of that effort.”
The Court crafted a narrow remedy that, in brief summary, required that the parties meet and confer to discuss redactions. “To ensure that all and only truly confidential portions of the pleadings are hidden from public view, the parties will be directed to meet and confer to agree on the scope of the redactions in the refiled documents.”
The decision ended with the following summary: “The occasion to consider the disciplining of [litigants] is not a happy one…, and courts do not lightly approach their duties in such circumstances. But this Court has found Campbell’s use of confidential materials she obtained from Aberdeen FCU computer systems failed to comply with her workplace ethics code. To protect the integrity and reputation of the judicial process, to prevent unfair prejudice, and to deter future misconduct, the Court must limit Campbell’s use of that material, no matter how meritorious she may believe her claims or actions to be.” [cleaned up].
The Campbell Court did not need to address the Computer Fraud and Abuse Act. Van Buren v. United States, 593 U.S. 374 (2021)(“In sum, an individual ‘exceeds authorized access’ when he accesses a computer with authorization but then obtains information located in particular areas of the computer—such as files, folders, or databases—that are off limits to him.”).
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