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'Watch List' Update: New Jersey Whistleblowers Can Be Prosecuted for Taking Documents

June 25, 2015

Author: Christine B. Hawes.

On Tuesday, the New Jersey Supreme Court issued its decision in State v. Saavedra, holding that a whistleblower can face criminal charges for taking sensitive documents from her employer to support her discrimination and retaliation lawsuit.

As we have discussed before, Ivonne Saavedra, a former North Bergen Board of Education employee, took hundreds of confidential documents from her employer, including student files and medical records. Her lawyer produced these documents during discovery in her civil lawsuit under the Conscientious Employee Protection Act and New Jersey Law Against Discrimination (LAD). The employer then reported the theft to prosecutors, and Saavedra was indicted by a grand jury on charges of theft and official misconduct.

Appealing her indictment, Saavedra argued that she was protected by the New Jersey Supreme Court’s 2010 decision in Quinlan v. Curtiss-Wright, which held that the LAD protects whistleblowers who take documents under certain circumstances. The Court rejected this argument, noting that Quinlan did not advocate “self-help” to bypass the civil discovery process or foreclose the possibility of criminal charges. The Court noted that Saavedra could raise the reasons for her theft as a defense to the charges at trial.

This decision provides New Jersey employers another potential method to safeguard their documents and information and raises risks of criminal liability for both whistleblowers and their attorneys. But the protection to employers is likely limited. Many “run of the mill” employer documents are not statutorily protected like the educational and medical records stolen by Saavedra. And Quinlan remains good law, allowing employees to use some stolen documents in civil litigation.

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Christine B. Hawes
Counsel – Washington, D.C.
Phone: +1 202.624.2968
Email: chawes@crowell.com