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.