The “No-Return Email” Doctrine: Fourth Circuit Clarifies that Employment Contracts Must Explicitly Require Employees to Return Company Emails

1. Introduction

Aerotek, Inc. v. Kenneth Nosky, No. 24-1372 (4th Cir. July 29, 2025) addresses a modern problem that plagues employers and employees alike: What happens to company emails and electronic files when an employee resigns? Aerotek, a Maryland-based staffing company, brought suit against its former account manager, Kenneth Nosky, asserting three core claims:

Breach of the common-law fiduciary duty of loyalty.
Breach of a contractual nondisclosure covenant.
Breach of a contractual return and preservation provision relating to “Company Records.”

After the district court granted summary judgment for Nosky, Aerotek appealed. The Fourth Circuit, in an unpublished per curiam opinion, affirmed on every ground and, in doing so, set a new marker in employment-contract drafting: unless a contract expressly requires the return of emails or other electronic data, no such obligation will be implied, especially when the contract does expressly reference emails in a different clause (here, the preservation clause). This commentary unpacks the ruling, its legal reasoning, precedential scaffolding, and its likely ripples throughout employment law and data-governance litigation.

2. Summary of the Judgment

The Fourth Circuit affirmed summary judgment for Kenneth Nosky on all claims, holding:

Duty of Loyalty: Under Maryland law, an employer must prove harm caused by the fiduciary breach. Aerotek presented no evidence that Nosky’s forwarding of files or his new employment injured the company.
Nondisclosure Covenant: Aerotek’s theory that forwarding emails to a Gmail account constituted disclosure to Google was not pleaded in its complaint, therefore it could not be raised for the first time at summary judgment.
Return and Preservation Provision: The contract’s language was ambiguous as to whether emails must be “returned.” Because Aerotek drafted the agreement and failed to specify email-return obligations—while explicitly mentioning emails only in the preservation clause—ambiguity is construed contra proferentem (against the drafter). Accordingly, Nosky had no contractual duty to return the forwarded emails.

Result: the appellate court affirmed the district court’s judgment in full.

3. Analysis

3.1 Precedents Cited

Weichert Co. of Maryland v. Faust, 19 A.3d 393 (Md. 2011) – Recognized the duty of loyalty as an implied fiduciary duty within every employment contract.
Maryland Metals, Inc. v. Metzner, 382 A.2d 564 (Md. 1978) – Clarified that mere departure to a competitor is not, by itself, harmful misconduct.
Plank v. Cherneski, 231 A.3d 436 (Md. 2020) – Articulated the three-part test for an independent breach-of-fiduciary-duty cause of action (relationship, breach, harm).
Myers v. Kayhoe, 892 A.2d 520 (Md. 2006) – Stated that an express contractual term overrides any inconsistent implied term.
Credible Behavioral Health, Inc. v. Johnson, 220 A.3d 303 (Md. 2019) – Reaffirmed the doctrine of construing ambiguities against the contract’s drafter.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) and Parkway 1046, LLC v. U.S. Home Corp., 961 F.3d 301 (4th Cir. 2020) – Standard for summary judgment review.
Cloaninger v. McDevitt, 555 F.3d 324 (4th Cir. 2009) – Prohibits a party from asserting unpleaded claims at the summary-judgment stage.

These authorities collectively guided the Fourth Circuit in determining (1) what proof is necessary for a duty-of-loyalty claim, (2) how to treat contract ambiguities, and (3) the procedural impropriety of sandbagging an opponent with a new legal theory at the eleventh hour.

3.2 Legal Reasoning

No Harm, No Breach – Duty of Loyalty
The court focused laser-like on element three of Plank: injury to the beneficiary. Because Aerotek could show no lost business, misappropriation, or client defection, it failed the test. The panel emphasized that merely possessing confidential data—without use or disclosure—does not equate to cognizable harm.
Pleading Matters – Nondisclosure Covenant
The central (and creative) contention that routing emails through Gmail equals disclosure to Google was absent from Aerotek’s complaint. Under Federal Rule 15 and Cloaninger, raising it at summary judgment constituted unfair surprise. The court therefore declined to entertain the theory, side-stepping a potentially thorny question about cloud-storage “disclosure.”
Textual Ambiguity and Contra Proferentem – Return & Preservation
The crux of the new doctrine lies here:
- The provision had two distinct verbs: “return” and “preserve.”
- Only the preserve clause expressly referenced “emails.”
- Applying Myers, an express inclusion in one part negates implication in a related part.
- Any lingering ambiguity is resolved against Aerotek, the drafter (Credible Behavioral).
Thus, without clear contractual language, an employer cannot compel a former employee to “return” emails.

3.3 Impact of the Judgment

Contract Drafting: HR professionals and counsel must now revisit non-disclosure and exit-protocol clauses to explicitly require the return (or deletion, or certification of deletion) of electronic materials, including emails, cloud drives, and instant-messaging data.

Litigation Strategy: Plaintiffs will need to marshal concrete evidence of harm for fiduciary-duty claims and plead all avenues of “disclosure” from the outset. Defendants, conversely, gain ammunition to attack vague drafting and late-blooming theories.

Data-Governance Policies: The case underscores the gulf between preservation duties (no unauthorized deletion) and return duties (affirmative transfer of possession). Companies may implement automatic retrieval solutions or certificates of data-return to avoid ambiguity.

Cloud Services & Metadata: While the panel sidestepped the “Google as third-party recipient” argument, it foreshadows future disputes around automatic cloud processing. Explicit contractual language can eliminate uncertainty.

Maryland & Fourth Circuit Precedent: Although unpublished and non-binding, the opinion will be persuasive authority, particularly because it synthesizes core Maryland contract-construction rules. Trial courts throughout the circuit are apt to cite it when confronting similar electronic-records provisions.

4. Complex Concepts Simplified

Fiduciary Duty vs. Contractual Duty: A fiduciary duty is an equitable obligation rooted in trust and loyalty, existing even without a specific contract clause. A contractual duty is a promise expressed (or implied) in the parties’ written agreement.
Summary Judgment: A procedural mechanism that disposes of claims lacking a genuine factual dispute—no need for a trial.
Ambiguity & Contra Proferentem: If contract language is reasonably susceptible to two interpretations, courts label it ambiguous. Under contra proferentem, any ambiguity is resolved against the party who drafted the contract.
Expressio Unius Est Exclusio Alterius: The expression of one item (e.g., “emails” in the preserve clause) implies the exclusion of the same item in another clause dealing with a similar subject (the return clause).
Pleading Theory: Litigants must place all material theories in their pleadings (the complaint). Surprising an opponent with unpled theories at summary judgment is forbidden.

5. Conclusion

Aerotek, Inc. v. Nosky serves as a timely reminder that the law still prizes precision in contractual drafting—even (or especially) in our digital workplace. The Fourth Circuit’s “No-Return Email Doctrine” crystallizes three key lessons:

Fiduciary-duty claims hinge on demonstrable harm; suspicion alone is insufficient.
Plead early, plead clearly—unpled theories die on the vine at summary judgment.
If employers expect departing employees to hand back electronic correspondence, the contract must say so unambiguously.

Given the ubiquity of cloud-based communications, the ruling’s practical effect is far-reaching. Counsel drafting employee agreements—and litigators prosecuting or defending related claims—should adapt swiftly, lest silence in a clause speak louder than words.