New Jersey Appellate Division Refuses to Suppress Confidential Documents Obtained by Former Employee from Employer's Computer System

The New Jersey Appellate Division has refused to recognize a judicial policy that punishes the pre-litigation tactics of a party by suppressing evidence obtained under questionable circumstances. In Tartaglia v. Paine Webber, Inc., the Court was asked to determine whether the trial court abused its discretion in suppressing of evidence obtained by a former employee for use in her employment discrimination suit against her former employer. Tartaglia was employed by Paine Webber as an attorney from 1992 until her termination in 1998. In her Complaint, she alleged, inter alia, that her termination was retaliatory and that she was discriminated against because of her psychiatric disability in violation of the New Jersey Law Against Discrimination (LAD).

During the course of discovery, Tartaglia produced several documents in response to Paine Webber’s discovery demands, three of which were at issue in this case. The first was a personnel memorandum authored by her supervisor, a named defendant, marked “Confidential – Attorney Work Product Material.” The memo contained the supervisor’s assessment of another staff attorney and, thus, had no relationship to Tartaglia. There was a dispute over whether this document was even accessible by Tartaglia, a dispute the Court did not resolve. Tartgalia acknowledged, however, that the confidential nature of the document was obvious and that she took the document because she believed it would be helpful to her case. The second and third documents were computer-generated lists of Paine Webber employees compiled by its Human Resources Department. Tartgalia obtained one of the lists herself during her employment after she lied about her reason for needing it. The other was given to Tartagalia by a co-worker in the legal department following her termination. The lists contained a substantial amount of information regarding Paine Webber employees, including their personal information, job title, and the date and reason for termination.

Before the trial court, Paine Webber filed an Order to Show Cause seeking dismissal of Tartaglia’s Complaint and return of the documents. The trial court ordered the exclusion of the “unlawfully obtained” documents due to Tartaglia’s pre-litigation misconduct even though it acknowledged that the documents would have been inevitably discovered. See Tartaglia v. Paine Webber, 342 N.J. Super. 192 (Law Div. 2001). According to the trial court, “a judicial policy that ignores a party’s pre-litigation lawlessness in connection with the gathering of evidence and further permits such tainted evidence to be admitted at trial merely because the evidence would have been otherwise admissible if the offending party had adhered to the rule of law, corrupts the judicial process and converts the court to an accomplice after the fact.”

On appeal, Tartagalia argued that the evidence should not have been suppressed because there was no substantial prejudice to Paine Webber and it would have been inevitably discovered. In reversing the suppression Order, the Appellate Division found that suppression of the evidence was “inconsistent with existing judicial philosophy which permits a search for the truth in the underlying litigation and leaves defendant with other remedies which might be available independent of the suppression of the relevant evidence.”

First, the Court found that Paine Webber was not prejudiced because Tartaglia had not destroyed or deprived it of any evidence or of its file contents. Moreover, since Paine Webber was always in possession of the documents, Tartaglia had not gained an unfair advantage. The Court distinguished the line of cases addressing the exclusion of evidence obtained in violation of the Constitution. According to the Court, “evidence obtained in violation of the Constitution is generally deemed inadmissible only in a criminal prosecution and only because of the illegal conduct of government officials.” Thus, the Court found that “illegally obtained evidence, which would be subject to suppression if secured by a government official, need not be suppressed when obtained by a private citizen acting on his or her own behalf.”

Second, the Court reiterated its mission to “limit the exclusion of probative evidence and to promote a search for the truth.” The Court chose to ignore what it called the “incidental illegality,”: finding that the role of the court was not to investigate and punish all offenses which incidentally crossed the path of the litigation. According to the Court, “such a practice would offend our system of law.” While the Court refused to suppress the evidence, it did not pass upon its admissibility. Rather, it remanded the case to the trial court for consideration of that issue.

Conclusion

This decision opens the door for employees who surreptitiously take confidential documents from their employer for use in threatened or pending litigation. An employer must take affirmative steps to protect itself from this type of employee misconduct. Many computer software programs allow the party creating the document to deny or limit access by others. Where documents the employer deems confidential are placed on a shared computer system, the employer should “lock” or segregate the document to prevent inadvertent or intentional access by others. This is not to say that the document may not ultimately be discoverable during the course of litigation. However, in that instance, the employer will have the ability to assert privilege and other objections to the production of the documents before the employee has seem them.