LESLIE O. ROBERTSON VS. THE STATE OF NEW JERSEY (L-1339-16, BURLINGTON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 27, 2018
• Docket: A-2211-17T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2211-17T3

LESLIE O. ROBERTSON,

Plaintiff-Respondent,

v.

THE STATE OF NEW JERSEY DEPARTMENT OF LAW & PUBLIC SAFETY, THE NEW JERSEY JUVENILE JUSTICE COMMISSION, GEORGE SPRAGUE,

Defendants-Appellants. _____________________________

Argued May 16, 2018 – Decided June 27, 2018

Before Judges Nugent and Currier.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1339-16.

Gregory R. Bueno, Deputy Attorney General, argued the cause for appellants (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Daniel F. Thornton, on the briefs).

Alan H. Schorr argued the cause for respondent (Schorr & Associates, PC, attorneys; Arykah A. Trabosh, on the brief).

PER CURIAM In this employment matter, upon leave granted, defendants,

State of New Jersey, Department of Law and Public Safety, New

Jersey Juvenile Justice Commission (JJC) and George Sprague

(defendants), appeal from the September 22, 2017 and January 11,

2018 orders compelling them to provide certain discovery to

plaintiff. We affirm.

Plaintiff Leslie Robertson, a former employee of the JJC,

alleges in a complaint against defendants, he was subjected to

racial discrimination, harassment, a hostile work environment, and

retaliation under the New Jersey Law Against Discrimination

(NJLAD), N.J.S.A. 10:4-1 to -42. The parties entered into a

Discovery Confidentiality and Protective Order.

During discovery, plaintiff requested defendants provide,

among other items, all race-based Equal Employment Opportunity

(EEO) complaints against JJC employees for a five-year timeframe.

Defendants advised it had fifty files that fell within the specific

parameters but refused to turn over those files without the court

conducting an in camera review. Following oral argument, the

court ruled on September 15, 2017, that the requested documents

were "relevant and discoverable in a racial discrimination case."

The judge reasoned that an in camera review was unnecessary in

light of the confidentiality agreement. She further advised if

defendants raised any specific privileges regarding the documents,

2 A-2211-17T3 the court would address them through a privilege log and potential

in camera review.

Defendants moved for reconsideration of the court's order,

contending existing case law required an in camera review. During

oral argument, they advised the court they had prepared a

spreadsheet summarizing the EEO claims from the pertinent files.

All personal identifiers had been redacted, including

complainants' and witness's names. Defendant had assigned to each

person a letter for race and gender, and a number.1

Despite these precautions, defendants contended the court was

required to undertake an in camera review of the documents due to

the privacy concerns of the individuals involved in the particular

documents. Plaintiff asserted, in turn, that the confidentiality

order and extensive redactions of any personal information allayed

any privacy concerns.

In an oral decision of January 5, 2018, the judge noted the

underlying competing policy considerations at play in the

disclosure of documents pertaining to discrimination or harassment

allegations. She referred to Payton v. New Jersey Turnpike

Authority, 148 N.J. 524 (1998), and its direction to trial judges

to implement procedures to protect the confidentiality of those

1 For example, the first African American male was assigned BM1.

3 A-2211-17T3 involved in the investigation. Here, a confidentiality agreement

and extensive redactions of the requested documents were already

in place and the judge was satisfied these precautions dispelled

the public policy concerns. She concluded:

At this point, given the foregoing, the Court will deny the motion for reconsideration. If down the line as these documents are being turned over there is an issue relating to any of these EEO proceedings or filings that warrant further review by the Court where the defendant can actually articulate a confidentiality concern, the Court will certainly do an in camera review, but at this point the Court finds that these records are certainly relevant and . . . the confidentiality concerns are sufficiently protected given the required redactions and the confidentiality agreement.

The trial judge memorialized her ruling in a written decision of

January 11, 2018.

On appeal, defendants reiterate their argument that the trial

court erred in failing to undertake an in camera review of the EEO

records. They assert the court did not make a finding of relevance

as to each document and failed to weigh the public and private

interests.

Despite extensive briefing and two oral arguments in the

trial court, defendants did not provide any specific argument to

support their assertion that the documents sought by plaintiff

4 A-2211-17T3 were not relevant. The appellate briefs and argument are no more

illuminating.

Litigants enjoy a wide breadth of discovery as Rule 4:10-2

permits "discovery regarding any matter, not privileged, which is

relevant to the subject matter involved in the pending action."

The broad standard includes all information reasonably calculated

to lead to admissible evidence. See Pfenninger v. Hunterdon Cent.

Reg'l High Sch., 167 N.J. 230, 237 (2001). Certainly, the

requested files, which contain allegations of race discrimination

and retaliation, meet this standard and are relevant to plaintiff's

case. Therefore, defendants must assert a privilege or other

public policy concern to prevent the disclosure of the files.

Defendants have not articulated a privilege that prevents the

production of the files. Rather, they argue, again without

specificity, that the trial court did not balance the public and

private concerns, and that our case law requires an in camera

review.

In Payton v. New Jersey Turnpike Authority, 292 N.J. Super.

36, 39 (App. Div. 1996), aff'd 148 N.J. 524 (1998), we addressed

whether plaintiff was entitled to defendant's internal EEO

documents relating to its internal investigation in an action

alleging violations of the NJLAD. Defendant opposed the

production, claiming the protection of several privileges. We

5 A-2211-17T3 disagreed with the applicability of several of the asserted

privileges, but remained concerned for the confidentiality

expectations of witnesses who had given statements or provided

information to the investigators. We therefore advised the trial

court, in its review of the material, to determine "whether the

identities of the witnesses shall be protected by appropriate

redaction." Id. at 48.

Here, the trial court recognized the privacy concerns

implicit to the disclosure of the EEO files. However, the parties

had a confidentiality agreement in place. In addition, defendants

had already redacted the documents and removed all identifiers in

accordance with the concerns enunciated in Payton. Defendants

could not articulate to the court what further measures to take

if an in camera review were done. We reject defendants' argument

that an in camera review is required in all such matters. Instead,

disputes over document disclosure should be analyzed on a case-

by-case basis. See Dixon v. Rutgers, 110 N.J. 432, 451 (1988).

We cannot discern an abuse of discretion by the trial court

in its decision granting plaintiff access to the EEO files.

Without any proffer to the contrary, the confidentiality order and

redaction protocol more than suffice to protect the privacy

concerns of any individuals involved in the investigations. During

the arguments, the judge advised that if defendants articulated a

6 A-2211-17T3 specific privilege or confidentiality following the production of

the redacted documents, she would address it. The trial judge's

discovery order was reasonable in light of the confidentiality

order and redaction protocol already in place.

Affirmed.

7 A-2211-17T3