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 court’s decision in Quinlan did not endorse self-help as an alternative to the legal process in employment discrimination litigation. Nor did Quinlan bar prosecutions arising from an employee’s removal of documents from an employer’s files for use in a discrimination case or otherwise address any issue of criminal law.

To the contrary, the court stated, “[h]ad [Saavedra] chosen to invoke it, the discovery process prescribed by our court rules would have afforded to defendant a fair opportunity to seek documents in support of her case.”

The court noted that the presence or absence  of a confidentiality policy and the circumstances under which the defendant gained access to  the documents are key factors the jury should consider in determining whether an employee has a claim of right to the documents if the charges proceed to trial. This serves as yet another reason for employers to ensure that they have in place confidentiality agreements and policies that clearly prohibit the unauthorized taking of confidential documents. Further, employers should assess the company’s safeguards for preventing unauthorized access to physical and digital confidential documents.