It depends. The general rule of thumb is this: If you have access to the document in the ordinary course of your duties and you give it only to your lawyer, then the document probably can be used in a lawsuit.
In Quinlan v. Curtiss-Wright, the New Jersey Supreme Court ruled that several factors must be balanced against each other that weigh the rights of the employee to be free from discrimination and retaliation against the employer’s legitimate need to conduct its business. The courts must consider all of the following factors.
First, how did the employee get the document? If the employee had access to the document in the ordinary course of her duties, then she may use it in litigation. “Snooping” or rummaging through files will weigh against admissibility of the document.
Second, what did the employee do with the document? If the employee looked at it, copied it and shared it with an attorney for the purpose of evaluating whether she had a viable claim or to assist in litigating a claim, the factor will favor the employee. On the other hand, if the employee copied the document and gave it to other employees not privileged to see it in the ordinary course of their duties or to others outside of the company, this factor will balance in the employer’s favor.
Third, what is the nature and content of the document? This is needed to weigh the strength of the employer’s interest in keeping the document confidential. Documents containing privileged information or trade secrets or confidential materials such as Social Security numbers of medical information about other people favors excluding the document.
Fourth, is there a clearly identified and enforced company policy on privacy or confidentiality that the employee’s disclosure has violated?
Fifth, what are the circumstances relating to the disclosure of the document? This is required to balance its relevance against considerations about whether its disclosure was unduly disruptive to the employer’s business.
Sixth, how strong is the employee’s expressed reason for copying the document rather than, for example, simply describing it or identifying its existence to her lawyer so that it might be requested in the lawsuit? If it is a “smoking gun,” such that the employee’s need to preserve it would be entitled to greater weight in light of risking its loss.
Last, but of the utmost importance, the court should evaluate how its decision in the particular case bears upon two fundamental but conflicting considerations. First, the court must recognize the broad public policy of eliminating discrimination. Second, the court must consider the effect that either protecting the document by precluding its use or permitting it to be used will have upon the balance of legitimate rights of both employers and employees.
December 7, 2010 – Paul Castronovo – Castronovo & McKinney