On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2550-99, whose opinion is reported at
Before Judges Stern, Eichen and Lintner.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Pursuant to leave granted, plaintiff appeals from an order requiring her to destroy copies of computer generated information taken from defendant Paine Webber, and enjoining her from revealing the contents and using them during the trial. As detailed in the trial court's reported opinion, Tartaglia v. Paine Webber, Inc., 342 N.J. Super. 182, 184-87 (Law Div. 2001), the material was obtained by plaintiff, an attorney formerly employed by Paine Webber, prior to her termination and, thereafter, through a co-worker for use in this contemplated litigation. Plaintiff appears to have obtained the material in anticipation of her termination and the Law Against Discrimination ("LAD") suit concerning the termination. She contends that the information she obtained supports her LAD claims.
Although believing that the "documents in question would have fallen under the purview of plaintiff's omnibus request for the production of documents" and "the Doctrine of Inevitable Discovery," the trial court concluded that "plaintiff's conduct goes far beyond its impact on defendant," 342 N.J. Super. at 194, and that:
[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 into an accomplice after the fact. [342 N.J. Super. at 194-95.]
The judge further concluded that "a judicial policy that deters such lawless conduct by excluding such tainted evidence from being admitted at trial . . . preserves the integrity of the judicial process and promotes proper pre-litigation evidence gathering," id. at 195, and "that the Inevitable Discovery Doctrine does not bar the exclusion of evidence in a civil case when such evidence was obtained by the offending party through lawless pre-litigation activities." Ibid. He therefore held "that plaintiff's lawless pre-litigation evidence gathering activities warrant the sanction of excluding the evidence so gathered from being admitted at the time of trial," ibid., in this LAD action against defendants, her former employer and supervisor at work.
Before us, plaintiff argues that "no evidence should be suppressed in the absence of 'substantial prejudice' to the defendants," that her allegedly wrongful conduct was itself protected by the LAD, and that "evidence that will inevitably be discovered should not be suppressed." While we have much sympathy for the policy the trial judge tried to support (and particularly the integrity of the judicial process and the need to deter), we find it 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 relevant evidence. This is especially true in a situation in which the judge found that "under the Doctrine of Inevitable Discovery, plaintiff's pre-litigation self help measures appear to have resulted in no actual harm to defendant." Id. at 194.
Plaintiff is an attorney at law admitted to practice in New York as well as New Jersey. Defendant Paine Webber employed her as an attorney in its legal department from August 1992 until April 1998 when it terminated her employment.*fn1 Thereafter, in April of 1999, plaintiff commenced this action alleging, among other things, violations of the LAD. Specifically, she alleged that she was fired because
of retaliation for her assertion and support of various internal complaints within the legal department regarding such matters as sex harassment, racial discrimination, gender discrimination, non-compliance with wage and hour laws, non-compliance with subpoenas and other orders served upon the company. Plaintiff also allege[d] that she was discriminated against due to her psychiatric disability which [was] aggravated as a result of defendant's alleged misconduct. [342 N.J. Super. at 184.]
On October 19, 1999, plaintiff produced documents in response to defendants' request for the production of documents. Among the documents produced were "privileged and/or confidential documents respecting the employment of other Paine Webber attorneys and employees." With regard to those documents, defendant Herbert Janick submitted a certification in support of defendants' application for an order to show cause seeking to have the documents returned and the complaint dismissed. As the trial judge developed in his opinion, Janick certified that a personnel memorandum, dated December 5, 1997, produced by plaintiff was labeled "confidential attorney work product material" and was obtained without permission. Janick further certified that the memo was filed in his computer in an area only accessible by him and Paine Webber's computer systems administrator.
During plaintiff's deposition, plaintiff was asked whether such a memo that had nothing to do with plaintiff was "fair game for everyone in the department." She responded in the affirmative if it was on the shared system from which she asserts the memorandum was taken.
In his reported opinion, the trial judge suppressed the December 1997 personnel memorandum. He also suppressed two computer generated lists of terminated and active employees, one of which was apparently obtained by plaintiff through a friend and former co-worker after plaintiff's termination. These documents were also generated by the Paine Webber Human Resources Management System and stored on its computer. After his decision was rendered, the trial judge clarified ...