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Discovery Issues

Can an employee who thinks he has proof in his employer’s records to protect his employment claims take those employer’s emails or documents and gives them to his attorney without breaking the law?

Short Answer: Maybe


In Quinlan, Ms. Quinlan, an employee of the aircraft manufacturer, Curtis-Wright, sued the company alleging gender discrimination in violation of LAD. To support her case, Ms. Quinlan gathered over 1,800 pages of company documents that she believed supported her claim that she had been subjected to gender discrimination by being passed over for a promotion. Some of those documents contained confidential personal information of other employees. While her lawsuit was pending, the company discovered that plaintiff had copied the confidential documents and provided them to her attorney, who used some of them during a deposition in the case. As a result of this discovery, the employer terminated plaintiff for alleged theft of company property. Ms. Quinlan subsequently amended her complaint to include a claim for unlawful retaliation.

The trial court ruled that plaintiff’s taking of the documents was not a protected activity, but that the later use of the documents by her attorney at a deposition was protected. At trial, the jury found that plaintiff had been fired in retaliation for the protected use of the documents at a deposition, and awarded Ms. Quinlan over $10 million in damages, inclusive of attorneys’ fees. On appeal, the Appellate Division reversed, holding that neither the taking of documents, nor their use at a deposition was a protected activity. The New Jersey Supreme Court disagreed, affirming the jury award and holding that, under certain circumstances, an employee’s taking and disclosure of documents relating to a discrimination claim can be a protected activity.

In reaching its ruling, the New Jersey Supreme Court attempted to balance the respective interests of both plaintiffs asserting LAD claims and employers. The Court set forth seven factors to be considered by trial courts to determine whether the taking and dissemination of a document is protected: (1) how the employee obtained the document; (2) what the employee did with the document; (3) the nature and content of the document at issue; (5) the circumstances of the disclosure and whether it was unduly disruptive to the employer; (6) the employee’s expressed reason for copying the document as opposed to requesting it through discovery; and (7) how the court’s decision impacts the public policy embodying LAD and the effect permitting or precluding the use of the documents will have on balancing the legitimate rights of both employers and employees.

This is an issue that is not settled in California, and so a California appellate court may or may not be persuaded by the logic of the New Jersey Supreme Court.  In the past, New Jersey and New York high court opinions have sometimes persuaded California courts to adopt their reasoning where California law was not already settled.  In light of the Quinlan decision, employers should not immediately assume that they can terminate an employee who has asserted a claim for discrimination if that employee copies or removes documents from the workplace without authorization. Nor should employees who have asserted discrimination claims assume that they are free to copy and disseminate their employer’s documents. In both situations, such decisions should be made only after careful consideration and consultation with competent counsel.

If you have questions, please contact William Bloch, Esq. at