United States: New Jersey Court Rules Individual Can Be Criminally Prosecuted For Taking Confidential Information To Support Civil Whistleblower Claims

Last Updated: January 16 2014
Article by Darren E. Nadel and Michael B. Roaldi

In 2010, the New Jersey Supreme Court created a qualified privilege for an employee taking documents to support an employment discrimination suit.1  However, this past December, in State of New Jersey v. Ivonne Saavedra,2 the Superior Court of New Jersey, Appellate Division, ruled that the qualified privilege should not be applied to protect a criminal defendant from a grand jury indictment for "official misconduct" for having taken those documents to support a retaliatory discharge claim.

Procedural History

In November 2009, the defendant and her son filed a civil complaint against the North Bergen Board of Education (the Board) for employment discrimination, hostile work environment, and retaliatory discharge in violation of the New Jersey Law Against Discrimination (the LAD).3  During discovery in the civil action, the defendant produced 367 documents which she had taken from the Board.  The Board then informed the County Prosecutor.

In May 2012, a grand jury indicted the defendant for the crimes of theft and official misconduct.  She moved to dismiss the indictment arguing that the New Jersey Supreme "says it's legal to take confidential documents."  The trial court disagreed, but still performed the qualified privilege analysis outlined by the New Jersey Supreme Court out of an abundance of caution.  The court found that, even under that rubric, the motion to dismiss failed.

Appeals Division's Analysis

The Appeals Division affirmed the trial court's analysis, ruling that the qualified privilege did not insulate the defendant from criminal prosecution for taking confidential documents.  The court also affirmed the finding that the State made a prima facie showing of theft and official misconduct.

The grand jury's indictment was based on the defendant's possession of 367 documents which belonged to the Board.  Among those documents were a bank statement provided to the Board by a parent, an appointment schedule of a psychiatrist who treated students with special needs, a consent for release of information to access Medicaid reimbursement, a signed letter from a parent whose child received confidential services for special needs, and an original letter about a child's emotional problem.  The Board's General Counsel testified that employees were trained to be aware that these documents were highly confidential and should not be taken.

The court began its analysis by examining the theft charge.  In New Jersey, "[a] person is guilty of theft if he unlawfully takes, or exercises unlawful control over movable property of another with purpose to deprive him thereof."4  The court found that, since taking the documents was against the Board's internal policies, the defendant likely took the documents with the purpose to deprive the Board. 

The court then addressed the defendant's qualified privilege argument.  To meet its burden of producing sufficient evidence for a prima facie case of theft, the State was required to show that the taking was unlawful.  The defendant claimed that the New Jersey Supreme Court decision rendered the taking lawful.  The Appellate Division disagreed.

In that case, the plaintiff claimed she was discriminated against when her employer promoted a man to the position of supervisor.  Her employer soon learned that she had taken confidential documents.  The court sought to strike a balance between "individual plaintiffs seeking to vindicate their rights and employers legitimately expecting that they will not be required to tolerate acts amounting to self-help or thievery."5  The New Jersey Supreme Court designed a seven step rubric to strike this balance in civil cases. 

The court in Saavedra, rejected the argument that the qualified privilege prevents the State from introducing evidence before the grand jury that the defendant unlawfully took documents, for several reasons. 

First, the court reiterated that the New Jersey Supreme Court decision created a qualified privilege, requiring a seven-step analysis.  Therefore, an employee runs a significant risk that taking confidential documents will not fall within its protection even in a civil context.

Second, the court emphasized that such an analysis is not necessary because the Supreme Court did not intend the holding to "act as a means of mounting a facial challenge to the indictment in this criminal case." 

Third, the State's failure to present evidence that the documents were taken for use in the civil case was not a failure to present exculpatory evidence.  As the court determined, "[e]ven if [the New Jersey Supreme Court case] were directly on point, which it is not, 'what the employee did with the document' is only one factor to consider . . . .'"  Such evidence would not be "clearly exculpatory."

The court then ruled that the State provided sufficient evidence to support a prima facie case for the second charge against the defendant, "official misconduct." "  A public employee commits official misconduct in New Jersey when, "[h]e commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner."6  The charge also requires that the act be done for the purpose of obtaining the benefit for the malefactor or another. 

Critically, the court decided that the State showed that the defendant was trained and informed that the documents she took were highly confidential and should not be taken or disclosed.  This was sufficient to meet the element of an "unauthorized exercise of [her] official function."  Further, the court found there was sufficient evidence that defendant's purpose was to obtain a benefit for herself.  The court ruled that the "official misconduct" statute requires only an affirmative act, not malicious intent.  The advantage that taking the documents provided in the defendant's civil suit was therefore enough to constitute a "benefit" to her.

The court also addressed the defendant's claim that a decision would have a chilling effect on LAD claims.  The court said that it does not make policy choices about what is and what is not criminal conduct, but instead makes that determination by looking at language passed by the legislature.  In addition, there was no evidence that the documents in this case would have become unobtainable by using ordinary discovery to obtain them.  There are also safeguards in place for employees who fear that evidence will be destroyed - such as sanctions or the tort of fraudulent concealment.  In short, there was no evidence of a need for self-help. 

The dissent argued that it would be unfair to prosecute an employee who legitimately believed she had a right to take the documents in question.  The majority countered by pointing out that, to dismiss the indictment on those grounds would amount to the judiciary establishing a public policy that employees must be "categorically insulated from criminal prosecution under the theft and official misconduct statutes if they take confidential documents" to support discrimination claims.  

What This Means For Employers

The decision in State v. Saavedra expands the potential for criminal prosecution of employees who use "self-help" to obtain evidence, particularly confidential documents, to support a civil claim.  The court's determination that the qualified privilege for an employee taking documents to support an employment discrimination suit is not applicable to a criminal indictment creates a far greater risk to employees who take employer documents.  Under Saavedra, the qualified privilege cannot be used to defend against a charge of theft.  Taking employers' confidential material can be unlawful, even if it is for the purpose of supporting a civil claim.  Saavedra also establishes that formal training with regard to what is confidential information will help to establish that the taking is unlawful.

The court's decision with respect to the charge of official misconduct has additional implications for public employees.  The defendant's intent in taking the document was to support a civil action.  This was deemed to be a significant enough personal benefit to meet a prima facie showing of the "benefit" requirement for official misconduct.  Therefore, in addition to theft, public employers may have "official misconduct" as an additional avenue available to them to seek to punish public employees.

Footnote

1 Quinlan v. Curtiss Wright Corp., 204 N.J. 239 (N.J. 2010), 52 A.3d 209 (N.J. 2010).

2 2013 N.J. Super. LEXIS 185, No. A-1449-12, (N.J. Super. Ct. App. Div., December 24, 2013).

3 N.J.S.A. 10:5-1-49.

4 N.J.S.A. 2C:20-3a.

5 204 N.J. 239, 245 (N.J. 2010).

6 N.J.S.A. 2C:30-2a.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Darren E. Nadel
Michael B. Roaldi
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions