Positive Development For New Jersey Employers: Discrimination Plaintiff May Face Criminal Prosecution For Theft Of Employer's Confidential Documents

The New Jersey Supreme Court recently affirmed an employee's indictment for allegedly stealing confidential documents from her employer to support employment discrimination and retaliation claims. In State v. Saavedra, 222 N.J. 39 (2015), the court made clear that employees should take heed before engaging in self-help in order to obtain confidential documents that they think support their case, rather than relying on the discovery process.

Saavedra was indicted for official misconduct in the second degree and unlawful taking in the third degree after she allegedly stole sensitive records, both copies and originals, about students and their families from the North Bergen Board of Education. Saavedra voluntarily dismissed her discrimination suit and then moved to dismiss the indictment. The trial court denied Saavedra's motion and the Appellate Division affirmed the trial court's decision. While the Supreme Court's 6-1 decision left open the possibility that Saavedra could establish an affirmative defense at her criminal trial by demonstrating a claim of right to the documents or some other justification for removing the documents from her employer, the court made clear that employees can face criminal prosecution for taking an employer's documents.

The court rejected Saavedra's argument that her indictment contravened public policy as explained in the New Jersey Supreme Court's decision in Quinlan v. Curtiss-Wright, 204 N.J. 239 (2010), which she argued stood for the proposition that an employee is entitled to take confidential documents from an employer for use in employment discrimination litigation and, therefore, criminal prosecution for doing so is barred. The Saavedra court stated:

This...