On June 23, 2015, the New Jersey Supreme Court held, in State v. Saavedra, No. A-68-13, ___ N.J. ___, 2015 N.J. LEXIS 641 (June 23, 2015), (a copy of the case can be found here) that an employee can be subject to criminal proceedings for stealing or copying confidential company documents for the purpose of supporting a discrimination or harassment lawsuit.
Factual Background. The defendant, Ivonne Saavedra, an employee of the North Bergen Board of Education (Board), filed an action asserting both statutory and common law employment discrimination claims. During the discovery process, it was discovered that Saavedra allegedly had removed and/or copied several hundred documents, which, according to the Board, included highly confidential medical and student records. Upon discovery, the Board reported Saavedra’s misappropriation to the county prosecutor.
Procedural History. The State presented its case against Saavedra to a grand jury. A Board attorney provided testimony regarding Saavedra’s employment with the Board, her civil litigation against it and the Board’s allegation that Saavedra had removed confidential student records. The grand jury indicted Saavedra for official misconduct and theft in the unlawful taking of public documents. Saavedra moved to dismiss the indictment alleging, among other things, that the Court’s decision in Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010), sanctioned the removal of documents for use in her employment discrimination claim. The trial court denied her motion. The Appellate Division granted Saavedra’s motion for leave to appeal and, in a published opinion, 433 N.J. Super. 501 (App. Div. 2013), affirmed the trial court’s denial of the defendant’s motion to dismiss the indictment.
Legal Analysis. The Supreme Court held that the trial court properly denied Saavedra’s motion to dismiss the indictment. It found that the State had presented to the grand jury a prima facie showing with regard to the elements of each charge in the indictment and that the State had not withheld any exculpatory evidence it was compelled to present.
More importantly, the Court explained that its decision in Quinlan did not endorse self-help as an alternative to the legal process in employment litigation. Nor did Quinlan prevent the prosecution of individuals who remove documents from an employer’s files for use in an employment case.
The Court made a special effort to explain that litigants and their counsel are expected to comply with the court discovery rules and plaintiffs cannot take documents simply because they have a Law Against Discrimination claim. Citing Rule 4:10-2(a), which provides that Saavedra is permitted “discovery regarding any matter, not privileged, which is relevant to the subject matter involved in [her] pending action,” the Court reasoned that the discovery process affords Saavedra a fair opportunity to seek documents in support of her case. If Saavedra had utilized proper procedures, the Court could have determined whether the improperly removed documents were relevant to her lawsuit and, further, if the documents were indeed protected from disclosure due to federal and state privacy laws, it could have denied their production, shielded private information within the materials through redaction, or imposed a protective order upon them.
Moreover, had Saavedra genuinely feared that the Board would destroy the evidence she stole, the Court reasoned that Saavedra had many tools at her disposal to preserve her right to discovery of the improperly removed documents such as a verified petition seeking to preserve evidence. Finally, had the Board destroyed or committed spoliation of evidence, a wide range of sanctions are available.
Notwithstanding the inapplicability of Quinlan to criminal proceedings, the Court did hold that a criminal defendant may assert a “claim of right” defense on the grounds that the use of the misappropriated documents supports a parallel discrimination claim, if the evidence supports such a claim.
The Bottom Line. This is a welcomed departure from Quinlanbecause the Court emphasized that it expects litigants to comply with discovery rules. Employers, however, should take note that the Saavedra opinion does not change Quinlan’s holding that taking adverse action against an employee for taking or using confidential documents in support of a discrimination case can constitute retaliation. On the other hand, employees that engage in this conduct are subject to criminal prosecution.