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An employee who knew her job was in jeopardy and gathered evidence to use against her employer might have acted wrongly, but she is not barred from using the evidence in her retaliation suit, the New Jersey Appellate Division ruled Wednesday. The three-judge panel reversed a trial judge who had effectively imported into a civil suit the criminal-practice rule of suppressing illegally acquired evidence, remarking that the “policy objectives behind the exclusionary rule … are not achieved by suppressing relevant evidence” in civil disputes. “[W]e can find no judicial policy which requires exclusion of the contested evidence in this case,” Judge Edwin Stern wrote in Tartaglia v. Paine Webber, A-6382-00. “In fact, defendant points to no statute or court rule which trumps the judicial policy which favors the admission of all probative evidence.” Maria Tartaglia claims her discharge, in 1998, from her post as assistant general counsel and corporate vice president at Paine Webber was in retaliation for her own sexual harassment complaint and for supporting other law department employees’ complaints of harassment, race and gender discrimination, noncompliance with wage and hour laws and other violations. In her suit, charging retaliatory termination and handicap discrimination under the Law Against Discrimination and lodging a common-law whistleblower claim, she proffered certain documents the company claimed were confidential and wrongfully obtained. The handicap claim is based on a pre-existing bipolar disorder, which she claimed was exacerbated by the company’s treatment of her. Stern, joined by Judges Naomi Eichen and Jack Lintner, said the question of whether the documents were obtained illicitly was a factual dispute that need not be resolved now. The panel adopted the trial judge’s finding that, because Tartaglia would have obtained the information anyway through discovery, her “pre-litigation self-help measures” caused no harm to Paine Webber. Though five documents were at issue, the appeals court focused on a Dec. 5, 1997, memorandum to the file written by general counsel and co-defendant Herb Janick, evaluating another staff attorney. The memo discusses the attorney’s misuse of company resources and her possible retaliation against a subordinate who reported it. The memo also refers to allegations that she instructed other subordinates to lie about her conduct. In a certification, Janick stated that he stored the memo, whose upper right-hand corner identifies it as “CONFIDENTIAL ATTORNEY WORK PRODUCT MATERIAL,” on his computer in an area accessible only by him and the company’s systems administrator. Tartaglia asserts that she came across the memo among word processing files accessible from her computer. She printed it out because she thought it might be relevant if the company fired her and she sued. She was concerned about her job because one of her projects had been abruptly terminated and she had been at odds with superiors over an ethics issue, according to her lawyer, Bennet Zurofsky. Tartaglia also obtained employees’ social security numbers, department assignments, reasons and dates for termination and other information. Some of the data were obtained while she was still working for Paine Webber, and other information was sent to her after she left, by a “friend” in the legal department, she said. She acknowledged she thought the information could help her sue the company. Hudson County Superior Court Judge Jose Fuentes found that, by acquiring the documents, Tartaglia abused her position of trust, “showed a startling disregard for the privacy rights of her fellow employees” and had “clear criminal implications” under computer theft laws. The fact that she is an attorney, he said, made her conduct “even more egregious.” Fuentes prohibited use or disclosure of the contents of the documents and required Tartaglia to destroy them. The appeals judges, conceding that how Tartaglia got the documents might be relevant to her credibility, gave four reasons why courts should “not attempt, in the course of a specific litigation to investigate and punish all offenses which incidentally cross the path of that litigation.” They cited due process concerns, interference with the main case, availability of direct means of redress and the nonpunitive nature of evidence rules. Plaintiffs’ lawyer, Zurofsky, says he’s relieved that the lower court ruling, published at 342 N.J. Super. 182, has been eviscerated. “Had Fuentes’ decision been permitted to stand, it could have been very damaging” to employees, says Zurofsky, a partner with Newark’s Reitman Parsonnet. It “seemed to go far beyond what any other court had ever done in any remotely similar context.” Though admissibility of the documents remains to be decided, Fuentes has already ruled the Janick memo is not privileged. Paine Webber lawyer Robert Bernstein did not cross-appeal that ruling. Bernstein, a partner with the Newark, N.J., office of New York’s Epstein Becker & Green, did not return a call seeking comment. Company spokesman Paul Marrone says that although the company is disappointed by the ruling, it “leaves the issue of admissibility and the fundamental issue of an unlawful taking of the firm’s documents for the trial judge.”

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