Yesterday, the New Jersey Supreme Court heard oral argument in Quinlan v. Curtiss-Wright, a case where the plaintiff, a human resources employee for Curtiss-Wright, looked for — and intentionally took — confidential information to help support her claim that she was discriminatorily denied a promotion, while still employed by Curtiss-Wright. More specifically, she began to review files in the human resources department looking for and copying material that she felt would help her litigation, including documents containing confidential personal information such as home addresses, telephone numbers and social security numbers, as well as salary information. She delivered more than 1800 pages of this confidential material to her attorneys. During the course of litigation, plaintiff’s attorney used this material in deposition, alerting Curtiss-Wright to the fact that plaintiff had taken this material on her own. Curtiss-Wright then fired the plaintiff, leading to a retaliation claim in addition to the previous failure-to-promote claim.
At trial, the jury concluded that Curtiss-Wright had discriminated against plaintiff, and that it had retaliated against her for engaging in protected activity. Following this verdict, the trial court entered judgment for plaintiff in plaintiff’ in the amount of $10,649,117.49, coinsisting of $4,565,479 in compensatory damages, $4,565,479 in punitive damages, $44,363.49 in prejudgment interest, $1,398,796 for counsel fees and costs, and $75,000 to compensate the plaintiff for negative tax consequences she would experience as a result of this award. On appeal, the Appellate Division reversed the jury’s verdict regarding retaliation. Quinlan v. Curtiss-Wright Corp., 409 N.J Super. 193 (App. Div. 2009). The Appellate Division held that neither plaintiff’s theft of material, nor her attorney’s use of the material during deposition, was “protected activity” under the New Jersey Law Against Discrimination. The court explained that any other result could “have the undesirable result of encouraging employees to go through their employers’ files and copy confidential material, secure in the knowledge that employers could do nothing so long as that material was later used in litigation.”
In oral argument, the New Jersey Supreme Court signaled that it was also leaning in that direction. Justice Barry Albin questioned plaintiff’s counsel whether “the employer is just supposed to sit back” when it learns that an employee has stolen confidential documents. Justice Albin further wondered “Why should we allow a system that encourages employee theft?” Justice Roberto Rivera-Soto suggested that, if plaintiff knew the documents existed, she should have told her lawyer about them, and the lawyer could then issue a document request or subpoena, in accordance with the court rules.
While the Court’s questions may signal that it is leaning toward prohibiting theft of confidential information, no decision has been issued yet. In the meantime, the Appellate Court’s opinion and the general tenor of the Supreme Court’s oral argument serves as a reminder to litigants that, regardless of whether or not they feel taht their employer has violated the law, this does not provide license to violate company policies and procedures, particularly regarding theft of confidential information about other individuals. While we fully appreciate that the wheels of justice might move slowly, litigants should avoid independent self-help measures, and should consult their lawyer before engaging in any discovery on their own.