January 24, 2022

Volume XII, Number 24

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January 24, 2022

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Self-Help Discovery Does Not Immunize Employee from Prosecution, Says New Jersey Supreme Court

On June 23, 2015, the New Jersey Supreme Court ruled that Quinlan v. Curtiss-Wright Corporation, 204 N.J. 239 (2010), does not bar criminal prosecutions arising from an employee’s removal of confidential company documents to support a discrimination claim.  State v. Saavedra, No. A-68-13.

Ivonne Saavedra filed a lawsuit under the New Jersey Law Against Discrimination (“LAD”) against her employer, the North Bergen Board of Education.  During the course of discovery in the litigation, her employer learned that she had taken hundreds of documents containing confidential medical and educational information of children. A grand jury indicted Saavedra for that conduct, charging her with theft and official misconduct.  Saavedra moved to dismiss the indictment on the grounds that Quinlan established a right for employees to take confidential employer documents to support discrimination claims.

Affirming the lower courts’ decisions, the Court denied Saavedra’s motion and, in so doing, declined to afford employees absolute protection from prosecution for improperly taking confidential documents from their employers to support discrimination claims.  According to the Court, “nothing in Quinlan states or implies that the anti-discrimination policy of the LAD immunizes from prosecution an employee who takes his or her employer’s documents for use in a discrimination case.”  The Court noted, however, that an employee still may assert a “claim of right” defense at trial or “other justification based on New Jersey’s policy against employment discrimination.”

Still, the specter of criminal prosecution for document theft underscores the risks attendant to self-help discovery.  As a consequence, Saavedra may have the effect of curbing the incidents of self-help discovery.

© 2022 Proskauer Rose LLP. National Law Review, Volume V, Number 176
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About this Author

Daniel L Saperstein, Proskauer Law Firm, Labor Employment Attorney
Associate

Daniel L. Saperstein is an Associate in the Labor & Employment Law Department, resident in the Newark office. He is a member of the Employment Litigation & Arbitration, Labor-Management Relations, Employment Law Counseling & Training, International Labor & Employment, and Whistleblower & Retaliation Groups, as well as the Dodd-Frank Task Force.

973-274-3272
Steven J Pearlman, Labor Employment Law Firm, Proskauer Law firm
Partner

Steven Pearlman is a partner in the Labor & Employment Law Department and co-head of the firm's Whistleblowing & Retaliation Group, resident in the Chicago office. Steven’s practice focuses on defending complex employment litigation involving claims of discrimination and harassment, wage-and-hour laws and breaches of restrictive covenants (e.g., non-competition agreements). He has successfully tried cases to verdict before judges and juries in Illinois, Florida and California, and defended what is reported to be the largest Illinois-only class action in the history of the U.S....

312-962-3545
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