NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3166-16T1
LOUIS NARVAEZ,
Plaintiff-Respondent,
v.
STATE OF NEW JERSEY JUDICIARY, VICINAGE 4,
Defendant-Appellant. _________________________________
Argued November 6, 2017 – Decided November 22, 2017
Before Judges Sabatino, Ostrer and Whipple.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L- 1717-15.
Christie Pazdzierski, Deputy Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Pazdzierski, Deputy Attorney General, on the briefs).
Richard E. Yaskin argued the cause for respondent.
Andrew Dwyer argued the cause for amicus curiae National Employment Lawyers Association of New Jersey (Dwyer & Barrett, LLC, attorneys; Mr. Dwyer, of counsel and on the brief).
PER CURIAM
By leave granted, defendant in this employment case appeals
from the trial court's January 20, 2017 order compelling defendant
to supply certain requested discovery to plaintiff. We affirm
that order, with modifications.
Plaintiff Louis Narvaez was the chief probation officer of
the Judiciary in the Camden vicinage. In February 2015, defendant
terminated plaintiff citing various reasons of dissatisfaction
with his work performance. Plaintiff then brought the present
lawsuit alleging that he had been wrongfully discharged in
violation of the Conscientious Employee Protection Act ("CEPA"),
N.J.S.A. 34:19-1 to -8, and the Law Against Discrimination ("LAD"),
N.J.S.A. 10:5-1 to -49. With respect to his CEPA claim, plaintiff
contends that defendant retaliated against him after he objected
to activities and decisions he maintains were contrary to law and
public policy. With respect to his LAD claim, plaintiff contends
that defendant discriminated against him because of his Hispanic
origin. Defendant denies those contentions and maintains that
plaintiff was terminated for legitimate reasons, including the
comparatively poor statewide ranking of the vicinage's probation
department under plaintiff's supervisory tenure.
2 A-3166-16T1 During the course of discovery, plaintiff sought documents
and information defendant regarded as confidential, including
performance-related documents concerning other managers in the
vicinage and internal performance improvement plans for the
probation department. The parties entered into a confidentiality
agreement in the form of a Consent Protective Order ("CPO"), which
we were advised was proposed and drafted by defendant. In that
CPO, the parties agreed that non-public information exchanged in
discovery about employment, personnel, internal grievances, State
operations, and medical records disclosed in discovery would be
kept confidential, and only used for the purpose of this
litigation, subject to advance notice of any public disclosure at
a trial or hearing.1
Plaintiff's counsel served various requests for documents in
discovery, some of which defendant opposed or wanted limited
through a protective order. The three categories that were in
dispute are: (1) Document Requests 10 and 12, which are no longer
at issue in this appeal; (2) Document Requests 4 and 6, concerning
the probation department's performance plan and assessments of
departmental statistics under plaintiff's successor and how those
1 During oral argument on the appeal, counsel for the parties agreed that the notice provision should be expanded to include motion practice, particularly with the advent of electronic filing in the Civil Part.
3 A-3166-16T1 results compare with those of plaintiff; and (3) Document Requests
16, 17, 20, and 21, seeking to obtain the personnel records and
other documents relating to other department heads in the vicinage.
Defendant argued that these requests improperly sought disclosure
of confidential materials. Plaintiff countered that he is entitled
to such discovery.
After hearing oral argument concerning these disputed
discovery demands, the trial court granted the plaintiff's request
without conducting an in camera review of the actual documents.
The court concluded that plaintiff's requests were reasonably
calculated to lead to potentially relevant and admissible
discovery. The court noted that the parties had entered into a
confidentiality order, so that records produced would be subject
to that order. In addition, the court instructed that the
identities of individual probationers should also be protected.
On appeal, defendant urges that the trial court should have
performed an in camera review before ordering the turnover of any
of the requested documents. Defendant stresses that the personnel
records of other employees traditionally have been accorded strong
confidentiality protection.2 Plaintiff has not cross-appealed any
aspects of the trial court's rulings.
2 Defendant has not appealed the trial court's disposition of issues concerning the deliberative process privilege.
4 A-3166-16T1 Plaintiff responds that he is entitled to these materials as
of right under Dixon v. Rutgers, 110 N.J. 432 (1988), and that no
in camera review is required. His position is supported by amicus
curiae.
Having considered these competing arguments, we affirm the
trial court's order, but with modification. We agree with the
trial court's preliminary assessment that plaintiff's discovery
requests have been fashioned to lead to potentially relevant and
admissible evidence in this wrongful discharge case. The
presumptive right of access to civil discovery in our State is
broad, as was recently reaffirmed by the Supreme Court in Capital
Health System, Inc. v. Horizon Healthcare Services, Inc., 230 N.J.
73, 81 (2017). On the other hand, we acknowledge that the
personnel records of other employees are entitled to a degree of,
if not absolute, confidentiality. N. Jersey Media Grp., Inc. v.
Bergen County Prosecutor's Office, 405 N.J. Super. 386, 390 (App.
Div. 2009).
We do not read Dixon, supra, 110 N.J. at 435, a case in which
the plaintiff assistant professor at a State college was denied
promotion and tenure, as mandating the automatic disclosure of all
otherwise-confidential records of a plaintiff's peers without in
camera judicial review. Nor, on the other hand, do we read Dixon
to signify that initial in camera review of such materials is
5 A-3166-16T1 always required before a defendant presents any such redacted
items to plaintiff's counsel. Rather than endorsing either of
these extreme positions, we instead recognize that disputes over
disclosure must be analyzed on a case-by-case basis, with the
court balancing the competing interests at stake. See Dixon,
supra, 110 N.J. at 456-57 (recognizing the contextual aspects of
the redaction process and a court's in camera review); see also
Loigman v. Kimmelman, 102 N.J. 98, 108-13 (1986).
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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-3166-16T1
LOUIS NARVAEZ,
Plaintiff-Respondent,
v.
STATE OF NEW JERSEY JUDICIARY, VICINAGE 4,
Defendant-Appellant. _________________________________
Argued November 6, 2017 – Decided November 22, 2017
Before Judges Sabatino, Ostrer and Whipple.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L- 1717-15.
Christie Pazdzierski, Deputy Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Pazdzierski, Deputy Attorney General, on the briefs).
Richard E. Yaskin argued the cause for respondent.
Andrew Dwyer argued the cause for amicus curiae National Employment Lawyers Association of New Jersey (Dwyer & Barrett, LLC, attorneys; Mr. Dwyer, of counsel and on the brief).
PER CURIAM
By leave granted, defendant in this employment case appeals
from the trial court's January 20, 2017 order compelling defendant
to supply certain requested discovery to plaintiff. We affirm
that order, with modifications.
Plaintiff Louis Narvaez was the chief probation officer of
the Judiciary in the Camden vicinage. In February 2015, defendant
terminated plaintiff citing various reasons of dissatisfaction
with his work performance. Plaintiff then brought the present
lawsuit alleging that he had been wrongfully discharged in
violation of the Conscientious Employee Protection Act ("CEPA"),
N.J.S.A. 34:19-1 to -8, and the Law Against Discrimination ("LAD"),
N.J.S.A. 10:5-1 to -49. With respect to his CEPA claim, plaintiff
contends that defendant retaliated against him after he objected
to activities and decisions he maintains were contrary to law and
public policy. With respect to his LAD claim, plaintiff contends
that defendant discriminated against him because of his Hispanic
origin. Defendant denies those contentions and maintains that
plaintiff was terminated for legitimate reasons, including the
comparatively poor statewide ranking of the vicinage's probation
department under plaintiff's supervisory tenure.
2 A-3166-16T1 During the course of discovery, plaintiff sought documents
and information defendant regarded as confidential, including
performance-related documents concerning other managers in the
vicinage and internal performance improvement plans for the
probation department. The parties entered into a confidentiality
agreement in the form of a Consent Protective Order ("CPO"), which
we were advised was proposed and drafted by defendant. In that
CPO, the parties agreed that non-public information exchanged in
discovery about employment, personnel, internal grievances, State
operations, and medical records disclosed in discovery would be
kept confidential, and only used for the purpose of this
litigation, subject to advance notice of any public disclosure at
a trial or hearing.1
Plaintiff's counsel served various requests for documents in
discovery, some of which defendant opposed or wanted limited
through a protective order. The three categories that were in
dispute are: (1) Document Requests 10 and 12, which are no longer
at issue in this appeal; (2) Document Requests 4 and 6, concerning
the probation department's performance plan and assessments of
departmental statistics under plaintiff's successor and how those
1 During oral argument on the appeal, counsel for the parties agreed that the notice provision should be expanded to include motion practice, particularly with the advent of electronic filing in the Civil Part.
3 A-3166-16T1 results compare with those of plaintiff; and (3) Document Requests
16, 17, 20, and 21, seeking to obtain the personnel records and
other documents relating to other department heads in the vicinage.
Defendant argued that these requests improperly sought disclosure
of confidential materials. Plaintiff countered that he is entitled
to such discovery.
After hearing oral argument concerning these disputed
discovery demands, the trial court granted the plaintiff's request
without conducting an in camera review of the actual documents.
The court concluded that plaintiff's requests were reasonably
calculated to lead to potentially relevant and admissible
discovery. The court noted that the parties had entered into a
confidentiality order, so that records produced would be subject
to that order. In addition, the court instructed that the
identities of individual probationers should also be protected.
On appeal, defendant urges that the trial court should have
performed an in camera review before ordering the turnover of any
of the requested documents. Defendant stresses that the personnel
records of other employees traditionally have been accorded strong
confidentiality protection.2 Plaintiff has not cross-appealed any
aspects of the trial court's rulings.
2 Defendant has not appealed the trial court's disposition of issues concerning the deliberative process privilege.
4 A-3166-16T1 Plaintiff responds that he is entitled to these materials as
of right under Dixon v. Rutgers, 110 N.J. 432 (1988), and that no
in camera review is required. His position is supported by amicus
curiae.
Having considered these competing arguments, we affirm the
trial court's order, but with modification. We agree with the
trial court's preliminary assessment that plaintiff's discovery
requests have been fashioned to lead to potentially relevant and
admissible evidence in this wrongful discharge case. The
presumptive right of access to civil discovery in our State is
broad, as was recently reaffirmed by the Supreme Court in Capital
Health System, Inc. v. Horizon Healthcare Services, Inc., 230 N.J.
73, 81 (2017). On the other hand, we acknowledge that the
personnel records of other employees are entitled to a degree of,
if not absolute, confidentiality. N. Jersey Media Grp., Inc. v.
Bergen County Prosecutor's Office, 405 N.J. Super. 386, 390 (App.
Div. 2009).
We do not read Dixon, supra, 110 N.J. at 435, a case in which
the plaintiff assistant professor at a State college was denied
promotion and tenure, as mandating the automatic disclosure of all
otherwise-confidential records of a plaintiff's peers without in
camera judicial review. Nor, on the other hand, do we read Dixon
to signify that initial in camera review of such materials is
5 A-3166-16T1 always required before a defendant presents any such redacted
items to plaintiff's counsel. Rather than endorsing either of
these extreme positions, we instead recognize that disputes over
disclosure must be analyzed on a case-by-case basis, with the
court balancing the competing interests at stake. See Dixon,
supra, 110 N.J. at 456-57 (recognizing the contextual aspects of
the redaction process and a court's in camera review); see also
Loigman v. Kimmelman, 102 N.J. 98, 108-13 (1986).
That said, we conclude that the trial court did not abuse its
wide discretion over discovery matters by issuing the January 20,
2017 order without first engaging in immediate in camera review.
The court reasonably found that the confidentiality order already
in place3 affords a sufficient degree of protection from
indiscriminate public disclosure. Moreover, the document requests
do appear to be reasonably calculated to yield relevant proof
relating to "comparatives," subject to offsetting confidentiality
concerns.
That said, we further conclude that the trial court's order
should be modified to make clear that defendant, consistent with
the procedure agreed upon in the CPO, may make what it believes
3 We reject, as did the trial court, defendant's position that the CPO is designed to cover only plaintiff's personnel records and not also the personnel and other records relating to other employees.
6 A-3166-16T1 are appropriate redactions to the documents, and then turn over
the redacted versions to plaintiff's counsel. The redactions may
include the use of initials, as well as the reasonable removal of
personal identifying information for other affected employees.
See, e.g., L.R. v. Camden City Pub. Sch. Dist., ___ N.J. Super.
___, ___ (App. Div. 2017) (slip op. at 48) (explaining how the
mere use of initials at times is insufficient to protect
confidential information concerning individuals). If, on receipt
and review of the redacted items, plaintiff objects, then the
dispute shall be resolved by the trial court through in camera
review to address the breadth and propriety of defendant's
redactions. The trial court may also consider other measures,
such as release of information to opposing counsel for counsel's
"eyes only." Following that review, the court may modify the
proposed redactions and order, if appropriate, the turnover of
additional portions of the contested materials on such terms as
may be just and appropriate consistent with Rule 4:10-2.
Affirmed, as modified. We do not retain jurisdiction.
7 A-3166-16T1