By: Susan L. Swatski, Esq. (sswatski@hillwallack.com) and Bryan A. Coe, Summer Associate (bcoe@hillwallack.com)
Employees seeking to support their employment discrimination litigation by removing confidential documents from their place of work should think again. That conduct, commonly referred to as “self-help” was recently dealt a blow in State v. Saavedra. Previously, in Quinlan v. Curtiss–Wright Corp., the New Jersey Supreme Court established a “totality of the circumstances” test for balancing an employee’s right to access and use documents during workplace discrimination litigation against an employer’s interest in protecting confidential documents. The New Jersey Supreme Court recently revisited the issue in State v. Saavedra, in which the court addressed whether an employee could face criminal charges for engaging in self-help to obtain confidential documents during civil litigation.
In State v. Saavedra, the employee removed documents from her employer, the North Bergen Board of Education, to assist in her employment discrimination claim. In response to a request from the employer to produce all confidential documents in her possession, the employee produced the documents which she removed from her employer. Upon learning of this, the employer notified the County Prosecutor, and the employee was indicted for third-degree theft by unlawful taking of public documents.
The employee argued that taking documents was allowed under the Quinlan “totality of the circumstances” test. In deciding the Saavedra case, the New Jersey Supreme Court, in a 6-1 decision, found that “nothing in Quinlan states or implies that the anti-discrimination policy of the Law Against Discrimination immunizes from prosecution an employee who takes his or her employer’s documents in use in a discrimination case.” However, the employee would be able to assert, during her criminal prosecution, that her intent was to use the documents in her discrimination litigation. The Supreme Court then articulated the following five factors for a jury to use when determining if an employee has a “claim of right” to use employer documents: (1) the contents of the documents; (2) the presence or absence of a confidentiality policy; (3) the privacy interest at stake; (4) the extent to which the employee disclosed the documents; and, (5) the employee’s reason for taking the documents instead of seeking them through discovery. This “claim of right” providesa defense to criminal charges, and the jury would weigh these factors to determine whether it was appropriate to remove the documents.
In the wake of the Saavedra decision, employers should make sure employees who handle confidential information sign a confidentiality or non-disclosure agreement. Having this signed agreement will weigh in an employer’s favor if an employee attempts to establish a “claim of right” during a civil proceeding. Additionally, the employee handbook should list how confidential documents should be handled and what the consequences of mishandling those documents are, including potential criminal prosecution.
If you are an employer, who regularly deals with confidential information, you should seek legal advice to determine whether your employment policies accurately protect you from an employee taking those documents from your possession to use in employment litigation.
