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Should Employer Return Your Personal Pictures and Files When Terminating You

Whitten and Lublin | Jan 12, 2018

Question:  I have personal pictures on my work phone as well as personal pic and files on my old work computer.  During my exit interview I informed my employer that I need this data back and they agreed.  I even followed up via email to my supervisor and it was confirmed and agreed with arrangements to be made to retrieve my data.  Upon making the arrangements as agreed, my employer notified me that they wiped my computer clean and also my phone.  They did not secure my data and it is clear that they didn’t even take any steps to ensure IT secured it for me.  They currently have my phone in a state that would allow me to recover the pics but are unwilling to recover them (using someone who knows what they are doing) and have stated ‘we’ll try but soon have to give the phone to someone else”.  I’ve told them by email they can’t alter the phone until my data is recovered; they are ignoring me.  My supervisor also said 1 month ago that he has IT ‘looking for my laptop’ and will contact me when he has information; but again is ignoring my requests.  What are my options/remedies should I not be able to recover my personal data as agreed to (verbally and in writing) because of their incompetence to properly secure and do this?  I have important pics and files that cannot be replaced!!  If I take them to court, the court can’t force them to give my data back IF it is destroyed and my data is much more valuable to me than $$$$.

Answer:

There is often no way to put a price tag on important personal photos and documents. These items are your personal property, even though they are stored on the employer’s laptop and cell phone.   Simply because it owns the equipment, does not give the employer a right to withhold, destroy or alter your personal documents.  Your former employer has in fact already made assurances to you that it would preserve and return your photos and has violated that promise.  You have evidence to suggest that the photos on your cell phone are recoverable and may be destroyed.  As a preventative measure, you can apply for a court order compelling the Company to preserve and recover your personal files stored on the cell phone and laptop, in accordance with its earlier promises.  These types of applications can be heard on an urgent basis if you have reason to believe that the data may be destroyed imminently. In light of the Company’s negligence in handling the data, you can ask for an inspection order,  to allow you to review the contents of the laptop with a third party IT professional who may be able to recover the data that is purportedly lost.    If the photos have been permanently destroyed and are no longer recoverable, your only recourse is to sue for damages.  While the intrinsic value of the photos cannot be easily compensated by money, there is no other practical relief that a court can provide in those unfortunate circumstances. The cost of legal proceedings may exceed the value that may be assessed by the court for the loss of the personal property.   You should speak to an employment law expert to review your options, including the costs and benefits of legal recourse.

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