Law Division Holds Unfiled Discovery Protected From Common-Law Right of Access
The Law Division in a to-be-published opinion in Drinker Biddle & Reath LLP v. New Jersey Department of Law & Public Safety, Division of Law, recently held that public policy does not favor access to unfiled discovery in public sector litigation under New Jersey’s common-law right of access.
Plaintiff filed a complaint in lieu of prerogative writs for failure to comply with the Open Public Records Act, (“OPRA”), and the common-law right of access in refusing to provide plaintiff with copies of unfiled transcripts of expert depositions in environmental litigation brought by the State of New Jersey, Department of Environmental Protection (“NJDEP”). Because the transcripts in their entirety had not been filed with the Court, NJDEP denied plaintiff’s OPRA request on privilege and confidentiality grounds.
As discussed in a previous blog post, the Appellate Division affirmed the lower court’s earlier decision denying plaintiff’s request for the materials under OPRA, but directed the trial court, on remand, to conduct a balancing test to determine if the unfiled discovery deposition transcripts of the NJDEP’s examination of the adverse party’s expert witnesses are accessible under the common-law right to access public records.
Analyzing the non-exhaustive factors set forth by the New Jersey Supreme Court in Loigman v. Kimmelman and confirmed in Education Law Center v. New Jersey Department of Education, the trial court on remand held that unfiled discovery materials did not satisfy any factor warranting access. Specifically, the Court noted that the Loigman factors “apply much easier to more traditional sorts of public records,” and the unfiled discovery materials “are not ministerially created or stored,” as contemplated by the public right of access, but instead “provide an intimate look into the thoughts and mental processes of the attorney and provide critical insight into the attorney’s methods and trial strategy.”
Ultimately, the trial court determined that access to the transcripts would provide plaintiff with a non-reciprocal right to records that would cause a “severe disadvantage” to the State. In so holding, the Court reasoned that plaintiff had no substantial or compelling need for the transcripts, and could not cite to any case law that would overcome the long-standing protection afforded to unfiled discovery documents in New Jersey. See, e.g., Estate of Frankl v. Goodyear Tire & Rubber Co. Thus, the trial court confirmed that although the common-law right of access is broader than its statutory counterpart in OPRA, it is not without its limits when there is a substantial need for protection of confidential materials that is not outweighed by societal interest.