The Virginia Business Litigation Blog
Proving once again that no good deed goes unpunished, a former employee of BB&T Insurance Services to whom BB&T graciously paid 30 days of severance pay despite terminating his employment for cause–and apparently without requiring the employee to sign a release–sued the company for wrongful termination. On June 17, 2009, however, Judge Wilson of the Western District of Virginia in Harrisonburg had “no hesitancy” in tossing out the case on summary judgment.
The employee’s job duties involved identifying, contacting, and providing services to existing and potential new insurance customers. To assist him in performing those duties, BB&T allowed him to use a company laptop with access to confidential files on the company’s network. At the time of his termination, the employee had 8 years’ worth of sensitive client information stored on his laptop.
While traveling, the employee left the laptop unattended overnight in his vehicle while it was parked in a hotel parking lot. It was stolen. When BB&T learned of the theft, it notified
those of its clients affected by the data breach and offered them a credit-monitoring service. These programs cost the company over $24,000.
There has not been a consensus among Virginia circuit courts with respect to determining when litigation is “anticipated.” Some courts apply a bright-line test that applies work-product protection to a document the moment an attorney becomes involved. Other courts decide the issue on a case-by-case basis, examining the particular facts and circumstances of each case and determining whether litigation was reasonably foreseeable, regardless of whether an attorney has been retained. Judge Chamblin favored the case-by-case approach “because things can be done in anticipation of litigation before an attorney becomes involved.”