A New Jersey Appellate Court recently ruled that an employee who removes or copies her employer’s documents for use in her whistleblower or discrimination case may be prosecuted criminally for stealing.  In State v. Saavedra, the employee had taken highly confidential original documents owned by her employer, contending that she did so to support her employment discrimination suit and therefore she should be free from prosecution.  As we have detailed, both the trial court and the Appellate Court agreed that the employee’s taking of documents could sustain an indictment. 

Saavedra argued on appeal that the trial judge had erred because a 2010 New Jersey Supreme Court case had established an absolute right for employees with employment discrimination lawsuits to take potentially incriminating documents from their employers. The Appellate Division disagreed and found the Supreme Court case did not establish such a bright-line rule; instead, it said, the Supreme Court delivered a seven-part “totality-of-the-circumstances” test to determine whether a private employer can terminate its employee for the unauthorized taking of its documents.  The Court went on to hold that the State had put forth enough evidence before the grand jury to establish a prima facie case.

An employee’s taking company documents prior to or at the time of termination is a scenario that may be familiar to many employers.  While the taking of documents may often be discovered in connection with whistleblower or discrimination claims, many employers also discover that documents and/or confidential information have been taken in connection with non-compete or unfair competition matters.  The Court’s decision could have serious implications any time an employee takes documents and and illustrates that employers are not without recourse.