PASQUALE FALCETTI, JR. VS. WATERFRONT COMMISSION OF NEW YORK HARBOR (L-4916-14, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 3, 2017
• Docket: A-2912-16T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2912-16T2

PASQUALE FALCETTI, JR.,

Plaintiff-Respondent,

v.

WATERFRONT COMMISSION OF NEW YORK HARBOR,

Defendant-Appellant. _______________________________

Argued June 6, 2017 – Decided July 3, 2017

Before Judges Ostrer and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4916-14.

Melissa A. Provost argued the cause for appellant (Drinker Biddle & Reath, LLP, attorneys; Ms. Provost, on the briefs).

George T. Daggett argued the cause for respondent.

PER CURIAM

On leave granted, defendant Waterfront Commission of New York

Harbor appeals a February 6, 2017 order compelling defendant to

produce 194 documents in response to plaintiff Pasquale Falcetti, Jr.'s discovery demands. We vacate the court's order and remand

for further proceedings in accordance with this opinion.

Plaintiff's complaint alleges that defendant wrongfully

delayed its investigation concerning his eligibility to work as a

longshoreman and thereby deprived him of his right to become

employed in that capacity. During discovery, plaintiff requested

defendant's investigation records. Defendant produced 606 pages

of documents but objected to producing an additional 194 documents

it claimed were privileged. Defendant provided a privilege log

identifying the documents and claiming each was protected from

disclosure under the law enforcement investigatory privilege.

Defendant claimed thirty-one of the documents were also protected

from disclosure under the attorney work product doctrine.

Plaintiff filed a motion to compel production of the

documents. The court granted the motion in an order stating only

that "[d]efendant[] . . . shall provide to [p]laintiff the

documents requested pursuant to discovery." The court denied

defendant's subsequent motion for reconsideration in an order

finding defendant did not satisfy its "burden to show the material

is privileged" and that plaintiff demonstrated "a compelling need

for [the] material."

We granted defendant's motion for leave to appeal the court's

orders. In our opinion we discussed the elements of the law

2 A-2912-16T2 enforcement investigatory privilege and work product doctrine, and

the balancing tests courts must perform to determine if documents

falling within the privilege or doctrine should otherwise be

produced. Falcetti v. Waterfront Comm'n of N.Y. Harbor, No. A-

1082-15 (App. Div. Sept. 23, 2016) (slip op. at 9-16). We also

explained that where a court conducts an in camera review of

documents identified in a privilege log, "it must examine each

document individually, and explain as to each document . . . why

it has so ruled." Id. at 16 (quoting Seacoast Builders Corp. v.

Rutgers, 358 N.J. Super. 524, 542 (App. Div. 2003)).

We found the court's order directing the production of the

documents "[gave] us little to no indication that it considered

the privilege log or the documents and conducted the requisite

balancing," and noted the court's order was unaccompanied by the

findings of fact and conclusions of law required under Rule 1:6-

2(f). Id. at 17. We also concluded the order denying defendant's

motion for reconsideration suffered from the same infirmity; it

"failed to explain how the court reached [its] conclusions." Id.

at 18.

We further determined the court's finding that plaintiff

demonstrated a compelling need for the documents "appear[ed]

unsupported by the record." Ibid. The court had not reviewed the

documents in camera, and the three certifications submitted on

3 A-2912-16T2 defendant's behalf explained the bases for its alleged privileges

under New Jersey law and why disclosure would be harmful. We

therefore found the record did not support the court's conclusion

that defendant failed to make a prima facie showing of privilege,

ibid., and concluded that because plaintiff's counsel's opposing

certification only mentioned four of the privilege log documents,

the record did not support the court's finding that plaintiff

demonstrated a compelling need for the documents. Id. at 18-19 .

We remanded the matter for a consideration of the

certifications and a review of the documents. Id. at 19. We

directed that the court issue "a statement of reasons explaining

why each document or category of documents should or should not

be disclosed." Ibid.

On remand, the trial court permitted the parties to provide

additional briefs. Plaintiff submitted letter briefs, but did not

submit any additional certifications supporting his claim that

there was a compelling need for the disputed documents. Defendant

submitted additional briefs and relied on the certifications

previously submitted in support of its assertions of privilege and

harm. The court conducted an in camera review of the documents.

In a February 1, 2017 order, the court again granted

plaintiff's motion to compel and ordered the production of the

privilege log documents. The court set forth its findings on

4 A-2912-16T2 defendant's privilege claims in a chart which grouped the 194

documents into seven categories: "[p]ublic records/news articles,"

"[s]ubpoenas," "[e]mails regarding subpoenas," "[e]mails regarding

investigation," "[l]egal documents," "[n]otes," and "[r]eports of

Commission investigation." The chart identified the exhibit

numbers for the documents included in each category and the court's

ruling on defendant's privilege claims for each category.

The listed rulings for the "[p]ublic records/news articles"

and "legal documents" categories state only that the documents are

"public records" and therefore not privileged. For the remaining

categories, the chart states either that the documents are "not

privileged" or briefly describes the documents within the category

and states they are "not privileged."

In addition to the chart, the court provided a conclusory

statement that "[n]one of the documents are protected by the law

enforcement investigatory privilege" and that the thirty-one

documents defendant claimed were protected by the attorney-work

product doctrine were "not protected." The court also offered that

"the vast majority" of the documents relate to "status and/or

scheduling or are public records" and, for that reason, were not

privileged.

The court then referred to the "few remaining documents" –

without identifying them – that defendant claimed were protected

5 A-2912-16T2 by the law enforcement investigatory privilege1 and explained it

conducted the balancing test required in Nero v. Hyland, 76 N.J.

213 (1978), and Piniero v. N.J. Div. of State Police, 404 N.J.

Super. 194 (App. Div. 2008). The court reasoned that those "few

remaining" but unidentified documents did not contain information

revealing law enforcement techniques, confidential sources or

witnesses, and their disclosure would not interfere with future

investigations. The court concluded that the "scale overwhelmingly

weigh[ed] in favor of disclosure to plaintiff," for the

unidentified documents, but based its conclusion only on its

finding that "the documents may be relevant to plaintiff's theory

of delay."

The court further stated that its findings concerning

defendant's claim the documents were protected under the attorney

work product doctrine was "similar" to its findings on the

investigatory privilege. The court stated plaintiff demonstrated

a "substantial need" for the production of the thirty-one documents

defendant claimed were protected under the attorney work product

1 As noted, all of the 194 documents at issue were listed in the court's chart and addressed in the court's rulings. Defendant claimed that all of the documents were protected under the law enforcement investigatory privilege. Based on our review of the record, we are unable to determine which of the 194 documents comprise those the court referred to as the "few remaining documents."

6 A-2912-16T2 doctrine. The court also explained that the documents did not

reveal any protected mental impressions, conclusions, legal

theories, or opinions of counsel concerning litigation. The court

entered a February 1, 2017 order granting plaintiff's motion to

compel the production of the privilege log documents.2 This appeal

followed.

In our initial decision in this matter, we expressly directed

that if on remand the court conducted an in camera inspection of

the documents,3 it was required to issue a statement of reasons

explaining why each document or category of documents should or

should not be disclosed. Falcetti, supra, slip op. at 19; see also

Payton v. N.J. Tpk. Auth., 148 N.J. 524, 550 (1997); Rosenberg v.

State Dep't of Law & Pub. Safety, Div. of Crim. Justice, 396 N.J.

Super. 565, 580-81 (App. Div. 2007); Seacoast, supra, 358 N.J.

2 The record reflects that on February 28, 2017, defendant provided plaintiff with 996 pages of materials, which comprised 55 of the 194 documents listed on the court's chart. Some of the documents were provided with redactions, which were explained in a February 28, 2017 letter from defendant's counsel to plaintiff's counsel. Defendant supplied the documents without prejudice to its assertion of privilege for the remaining documents in the privilege log. The provision of the documents subsequent to the court's February 1, 2017 order under appeal here does not affect our decision, and we note that plaintiff is free to challenge the sufficiency of the production and redactions on remand. 3 In the initial appeal, we were informed there were 196 documents at issue. Falcetti, supra, slip op. at 17. On remand, the court addressed defendant's privilege claims as to only 194 documents.

7 A-2912-16T2 Super. at 542. The statement of reasons was not only required by

our remand decision, it was otherwise necessary because a failure

to provide findings of fact and conclusions of law "constitutes a

disservice to the litigants, the attorneys and the appellate

court." Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141

N.J. Super. 1, 4 (App. Div. 1976); see Gnall v. Gnall, 222 N.J.

414, 428 (2015).

Based on our review of the record, we are constrained to

conclude that the court did not make the required findings of fact

and conclusions of law supporting its decision.4 In the first

instance, the court failed to make sufficient findings supporting

its rulings, as reflected on the chart, that the documents in the

"[p]ublic records/news articles," "[e]mails regarding subpoenas,"

"[e]mails regarding investigation," "[n]otes," and "[r]eports of

Commission investigation," are not privileged.5 For the "[n]otes"

4 We reach this conclusion without the benefit of the documents, which appellant should have provided to the court in a confidential appendix. However, it is not for this court, in the first instance, to review each document, characterize it, ascertain whether it is subject to privilege, and then determine whether that privilege should yield to plaintiff's need for discovery. Our role is to deferentially review, for an abuse of discretion, the trial court's fulfillment of that task, including setting forth in sufficient detail the basis for its decision. 5 It appears the documents in the other categories, "[p]ublic records/news articles" and "[l]egal documents," were produced by defendant on February 28, 2017, and thus are no longer at issue.

8 A-2912-16T2 and "[r]eports of Commission investigation" categories, the

rulings on the chart state only that the documents are "[n]ot

privileged." For the two email categories, the chart states only

that the documents are not privileged because they contain status

requests and scheduling issues. Similarly, the ruling on the

documents in the "[n]otes" category states that the documents are

not privileged because they pertain to scheduling and status, and

also because they pertain to "plaintiff's possible relationship

to organized crime."

The court's rulings were conclusory, unsupported by

sufficient findings of fact, and untethered to any analysis of the

applicable law that we discussed in detail in our opinion remanding

the matter. See Curtis v. Finneran, 83 N.J. 563, 570 (1980) ("the

trial court must state clearly its factual findings and correlate

them with the relevant legal conclusions"). A determination of the

applicability of the law enforcement investigatory privilege

requires a consideration of many factors and weighing of law

enforcement's need for confidentiality and the party's need for

the disputed records. Nero, 76 N.J. at 223-25; Falcetti, supra,

slip op. at 14-15; Piniero, supra, 404 N.J. Super. at 205-07.

Simple characterizations that a vast number of documents relate

to scheduling or status requests do not represent the detailed

9 A-2912-16T2 findings required by our directive on remand or by law. See Payton,

supra, 148 N.J. at 550; Seacost, supra, 358 N.J. Super. at 542.

In addition, although the court determined that none of the

documents were privileged under the law enforcement investigatory

privilege, it nonetheless conducted a balancing test for a "few

remaining" unidentified documents to determine if plaintiff's need

for the documents outweighed defendant's need for confidentiality.

The court made findings that the unidentified documents did not

contain information protected by the investigatory privilege and

concluded plaintiff's need for the documents overwhelmingly

outweighed defendant's need for confidentiality.

Again, the findings are inadequate. As noted, it is not

possible to discern the documents assessed in the court's balancing

test.6 Moreover, in its attempt to balance the interests of the

parties, the court makes insufficient findings grounded in the

evidentiary record concerning defendant's need for confidentiality

or plaintiff's need for the documents. The court also failed to

address our observation in the remand decision that the

certification submitted in support of plaintiff's motion to compel

mentioned only four of the documents in the privilege log and

6 We note that the documents might include those defendant produced on February 28, 2017.

10 A-2912-16T2 therefore "provides no apparent basis" to conclude plaintiff made

a compelling need for defendant's entire investigatory file.

Falcetti, supra, slip op. at 19. Plaintiff submitted no additional

evidence on remand in support of its request for the documents

and, for the reasons we explained in Falcetti, ibid., the court's

finding plaintiff demonstrated an overwhelming need for the

documents once again appears unsupported by the record.7

We offer no opinion as to whether any of the documents are

privileged or come within the protection of the attorney work

product doctrine. That determination must be made by the trial

court in the first instance in accordance with the guidance we

provided in Falcetti. Ibid. The court failed to make the requisite

findings of fact and conclusions of law supporting its

determinations and we remand again for the court to do so.

We vacate the court's February 1, 2017 order and remand for

further proceedings consistent with this opinion. We do not retain

jurisdiction.

7 The court's conclusion that plaintiff demonstrated a substantial need for the thirty-one documents defendant also claimed were protected under the attorney work product doctrine suffers from the same absence of support in the record. Moreover, the court did not make any findings of fact based on the evidentiary record and therefore did not apply the facts to the applicable law in a manner supporting its conclusion.

11 A-2912-16T2