Article by Capehart Scatchard

by Bruce L. Harrison, Esq.

INTRODUCTION

In litigation in which we defend employers from claims of employment discrimination and/or wrongful termination, we commonly find that the employee/plaintiff has stolen documents from the Company. Presumably, the motivation for this misconduct is to build a documentary case against the employer prior to litigation. In a decision dated February 21, 2001, the Superior Court of New Jersey in Hudson County has for the first time in this state provided insight regarding the consequence of theft of company documents within the context of an employment discrimination claim.

THE CASE

Factual background

Specifically, in Maria Tartaglia v. Paine Webber, Inc., et al, the plaintiff was employed as a staff attorney for the defendant brokerage house. In her complaint, Ms. Tartaglia asserted that in violation of the New Jersey Law Against Discrimination (“LAD”), specifically N.J.S.A. 10:5-2, she was retaliated against for her “support of various internal complaints within the legal department regarding such matters as sex harassment, racial discrimination, gender discrimination, non-compliance with wage and hours laws” and the like.

In response to defendants’ request in discovery that plaintiff produce documents, Ms. Tartaglia turned over some which were particularly sensitive and which she had no right to possess. For example, a memorandum was produced which had been written by Paine Webber’s General Counsel, Herb Janick. Janick’s memorandum was prepared shortly after he conducted a conference with another staff attorney and was stored on his office computer.. The phrase “CONFIDENTIAL ATTORNEY WORK PRODUCT MATERIAL” was written at the top of the memorandum. Exactly how Ms. Tartaglia obtained a copy of the memorandum is disputed and determined by the Court not to be material to its decision. Regardless, Ms. Tartaglia conceded at her deposition that she knew the document was confidential and not one to which she was intended to have access.

Given this concession, and again at her deposition, the plaintiff was asked why she printed out and misappropriated the document. Ms. Tartaglia provided the following answer:

Because I thought it might be relevant for my case.

I am referring to my belief at the time that I was being harassed and treated unfairly relative to other people in the department because of various events that had occurred prior to my seeing this memo.

The Court’s decision and analysis

Having learned that plaintiff had misappropriated sensitive documents and intended to rely upon them in her litigation, defendants secured an Order to Show Cause with Temporary Restraints. Among the relief requested was the dismissal of plaintiff’s complaint with prejudice and a permanent restraint on plaintiff from revealing the contents of the stolen documents to anyone for any purpose. In response, plaintiff apparently took the position that no sanction was appropriate.

The Court, Honorable Jose L. Fuentes presiding, refused to dismiss the complaint finding that (a) there is “an inherent aversion to any final judgment not based on the merits of the case”; and (b) “plaintiff’s conduct …does not involve a direct frontal assault on the court’s authority.” While the plaintiff prevailed on this issue, the only other issue on which she prevailed was the Court’s denial of defendants’ request for attorney’s fees.

Judge Fuentes was particularly distressed that plaintiff is an attorney bound by ethical rules which mandate “loyalty to her client/employer.” Additionally, he found that plaintiff’s conduct had clear criminal implications, most specifically an apparent violation of N.J.S.A. 2C:20-25, the statute forbidding computer theft. Given these findings, he emphatically condemned the plaintiff for her conduct and stated that “[h]er conduct demands some type of judicial action aside from strong disapproving language.”

The judicial action determined by Judge Fuentes to be appropriate was to bar use of the stolen documents at trial and to restrain Ms. Tartaglia from using them for any purpose whatsoever. This remedy was imposed based upon three distinct guiding principles:

1. the remedy must serve traditional judicial policies of uniformity, predictability and security;
2. it must “purge the taint this evidence would bring to the judicial process if permitted to become a part of plaintiff’s arsenal of proof”;
3. it must deter “this type of unilateral, self-help, lawless behavior.”

Perhaps the most difficult issue associated with the Court’s decision to bar use of the stolen documents was the so-called Doctrine of Inevitable Discovery. Under this doctrine, the premise is that were normal discovery procedures to be followed, the documents would be disclosed: hence, the “exclusionary rule” should not be applied.

The Court found compelling that the documents in question would have been turned over by defendants during normal pre-trial discovery. This finding provoked a second finding: that under the Doctrine of Inevitable Discovery “plaintiff’s pre-litigation self-help measures appear to have resulted in no actual harm to defendants.”

These findings notwithstanding, the Court held to its decision to exclude the documents from evidence. It based its decision on the impact of plaintiff’s conduct on the three guiding principles recited above. In this regard, Judge Fuentes explicitly found that these principles enunciate a compelling public policy to support exclusion. To find otherwise, the Judge concluded, would corrupt “the judicial process and convert(..) the court into an accomplice after the fact.”

IMPACT OF THE DECISION

One should be cautious about relying on this decision at this time. First, since this ruling does not constitute a “final judgment’ on the merits there is no right of appeal under Rule 2:2-3. The plaintiff may, of course, seek discretionary review under Rule 2:2-4, but review of interlocutory orders is quite rare.

Second, there is no mistaking the importance of the excluded documents to this case. Indeed, Judge Fuentes referred to the Janick memorandum as a “veritable smoking gun.” This fact heightens the likelihood that the decision may ultimately be appealed.

Third, while Judge Fuentes decision is both well reasoned and well written, it is, at this point, an unpublished trial court opinion with no precedential value. Thus, another Law or Chancery Division judge presented with similar facts might reach a very different result.

Fourth, since the basic factual situation of an employment law plaintiff stealing company documents is common, it is hard to fathom that the plaintiff’s bar will not seek appellate review of this issue either in this case of one subsequent. The fundamental question presented in this case literally cries out for appellate consideration and one can reasonably anticipate such review in this case or another.

Fifth, it remains to be seen how fact sensitive other courts will determine this case to be. Illustrative, would there be a different result in another case if the plaintiff were not an attorney; or if the documents were not stored electronically; or if the documents were less obviously highly confidential; or if the plaintiff was an addressee of the document(s) in question?

Mindful of these and other basis for caution, Judge Fuentes’ decision is nonetheless a breath of fresh air for employers in New Jersey. Underlying this decision is plainly the notion that there should be a level playing field. Employers should not be held to very high standards while employees are free to behave recklessly. Judicial judgments based on this premise will always be welcome.

This article was written by Bruce L. Harrison, Esq., a Shareholder and Executive Committee Member in Capehart Scatchard’s Labor and Employment Group and Environmental/OSHA Group. Should you have questions or like more information, please contact Mr. Harrison at 856.914.2073, by fax at 856.235.2786, or by e-mail at bharrison@capehart.com.

© 2001 Capehart & Scatchard, P.A.