N.J. Supreme Court considers whether a whistleblower employee can be indicted for taking confidential documents from a public employer
The Supreme Court of New Jersey is weighing whether a former board of education employee should face criminal charges for taking her employer’s documents to support her planned discrimination and retaliation claims. The employee, Ivonne Saavedra, took 367 documents from the North Bergen Board of Education – dozens of which contained sensitive personal medical information. After facing charges for theft and official misconduct, Saavedra claimed that her actions were shielded by the Conscientious Employee Protection Act (“CEPA”) and Law Against Discrimination (“LAD”).
In 2012, the Superior Court affirmed Saavedra’s indictment. She then appealed to the appellate court; a three-judge panel issued a published decision, affirming the prior ruling with one dissenter. Due to the split decision, the high court automatically granted certiorari to hear Saavedra’s appeal. Arguments were heard in the case, State v. Saavedra, in November 2014.
In their arguments throughout the litigation, both the state and the appellant relied upon the New Jersey Supreme Court’s decision in Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010). The Quinlan court held that whistleblower claims require “a flexible, totality of the circumstances approach” which must take into account seven factors to determine whether an employee is privileged to take or to use documents belonging to the employer. Attorneys for the state argued that the Quinlan factors supported a finding for the indictment; Saavedra’s counsel argued the opposite.
The trial and appellate courts rejected the applicability of the Quinlan factors in the criminal context, holding that Quinlan does not establish an absolute right for employees to take documents which may support their discrimination lawsuits. Rather, the majority of the appellate panel noted that Quinlan was a civil employment discrimination case which did not bind a criminal court judge deciding a motion to dismiss an indictment. Judge Simonelli, in her dissent, reasoned that Saavedra’s conduct was protected by the CEPA and LAD because “the law is so amorphous and uncertain that lay persons of ordinary intelligence acting in good faith pursuant to [the statutes] have no fair warning that it is a crime to take or copy confidential employer documents they reasonably believe are relevant to their claims and transmit those documents to their private attorneys.”
Counsel for Saavedra argued before the state Supreme Court that prosecution would have a “chilling effect” on potential whistleblowers. The state’s attorney argued that overturning the indictment, and creating a bright-line rule that any plaintiff in a CEPA or LAD claim has a right to take documents, would create “open season on employer’s records.” Both sides also argued that the Quinlan balancing test would favor their respective positions.
If guilty, Saavedra faces up to 10 years in prison. Saul Ewing’s White Collar and Government Enforcement Practice will monitor this case and will update our readers upon the Supreme Court’s ruling.