In a decision that might have significant ramifications in future discrimination and whistle-blower lawsuits, the New Jersey Supreme Court ruled in Quinlan v. Curtiss-Wright Corp., No. A-51-09 (N.J. Sup. Ct. Dec. 2, 2010) that an employee who copied 1,800 of pages of documents that she came upon during the normal course of her work — many with confidential information — could share them with the attorney representing her in a lawsuit against the employer. The Supreme Court allowed the usage of these documents even though the plaintiff signed her employer’s standard confidentiality agreement that bars employees from using confidential information for private use.
According to the dissent:
From this point forward, no business can safely discharge an employee who is stealing highly sensitive personnel documents even as she is suing her employer and disregarding the lawful means for securing discovery. Moreover, lawyers may think that, even after they have initiated a lawsuit, they can accept pilfered documents and benefit by using them to surprise an adversary in a deposition rather than abide by the rules of discovery.
Although the decision did reaffirm the ability of an employer to fire an employee for the theft of confidential documents, it provides for a potential safe harbor to the extent such documents are used in a subsequent suit for discrimination. Newspapers as well as law firms have written on the decision, including Lowenstein Sandler, Proskauer Rose, Jackson Lewis, and Fox Rothschild.
Commentators have suggested that employers implement comprehensive confidentiality policies that are communicated firm-wide and uniformly enforced. Although that is certainly sound counsel, it is also suggested that adequate security measures be implemented that allow employers to prevent or at least track the copying and removal of over one thousand documents. Moreover, although not discussed in either the ruling or subsequent commentaries, there is only a minor leap to be made to extend this holding to whistle-blower suits. Although choice of law issues remain untested, the new Dodd-Frank’s whistle-blower provisions — which allow employees to obtain significant rewards for providing information to law enforcement authorities about violations of the federal securities laws, the Foreign Corrupt Practices Act, the Investment Advisers Act and the Investment Company Act — may even be in play. Bottom line: New Jersey employers need to review their data security and confidentiality policies to address this new decision.