NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1472-23 A-1473-23 A-1474-23
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
SUDHAN M. THOMAS, JOHN CESARO, and JOHN S. WINDISH,
Defendants-Respondents. ____________________________
Argued January 6, 2025 – Decided January 14, 2025
Before Judges Mawla, Natali, and Vinci.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 21-01-0003, 21-01-0008, and 21-01- 0009.
Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for appellant (Matthew J. Platkin, Attorney General, attorney; Jeremy M. Feigenbaum, Solicitor General; Angela Cai, Deputy Solicitor General; Liza B. Fleming, Deputy Attorney General; Jennifer E. Kmieciak; Steven K. Cuttonaro, Deputy Attorney General, of counsel and on the briefs).
Jeffrey G. Garrigan argued the cause for respondent Sudhan Thomas (Cammarata Nulty & Garrigan, LLC, attorneys; Jeffrey G. Garrigan, on the brief).
Robert E. Dunn argued the cause for respondent John Cesaro (Hanlon Dunn Robertson, attorneys; Robert E. Dunn, on the brief).
Matthew T. Priore argued the cause for respondent John S. Windish (Law Offices of Matthew T. Priore, attorneys; Matthew T. Priore and Scott J. DeRosa, on the brief).
PER CURIAM
In these consolidated appeals involving the State's prosecution of
defendants Sudhan M. Thomas, John Cesaro, and John S. Windish, we granted
the State leave to appeal from parts of a July 24, 2023 discovery order. We
affirm in part, reverse in part, and vacate and remand in part, for the reasons
expressed in this opinion.
In late 2017, Matthew O'Donnell, then an attorney-at-law, began
cooperating with the State in various public corruption investigations after
investigators confronted him with evidence of his own criminal conduct.
Through April 2018, the State held several proffer sessions with O'Donnell,
during which he offered information about several people, including Windish
A-1472-23 2 and Cesaro. O'Donnell did not mention Thomas, but generally discussed
politicians in Hudson County and Jersey City. He claimed he had obtained
contracts in Jersey City using straw contributions.
In June 2018, O'Donnell entered an agreement to plead guilty to one count
of second-degree conspiracy to commit misconduct by a corporate official,
N.J.S.A. 2C:5-2 and N.J.S.A. 2C:21-9(c). In exchange, the State agreed to "not
prosecute [O'Donnell] for any other heretofore disclosed activities in connection
with any and all unlawful political contributions made by [O'Donnell] or his
coconspirators on behalf of [O'Donnell]." O'Donnell agreed to pay restitution,
and the State agreed to recommend an eight-year prison sentence.
On February 27, 2019, the New Jersey Office of the Attorney General,
Division of Criminal Justice (DCJ) Deputy Bureau Chief Jeffrey Manis,
authorized a consensual intercept of O'Donnell's communications for a period
of thirty days. The targets included one named individual, whose name was
redacted "as yet unidentified individuals."
On the same date, a recording was made of O'Donnell's communications
at a political fundraiser at a Bayonne restaurant. Among the conversations
intercepted was one O'Donnell had with Thomas, in which Thomas expressed
his gratitude to O'Donnell "because you're one of the first guys that came out ."
A-1472-23 3 O'Donnell responded: "Remember, I'm always here for you" and offered to help
Thomas "build a war chest" for the November election. Both men subsequently
messaged each other and agreed to meet on May 1, 2019.
In discovery, the State provided Thomas with documents pertaining to the
February 2019 conversation. The discovery transmittal letter noted the
documents were redacted to the extent they contained information "related to a
confidential investigation that did not result in any criminal charges against any
third-parties."
Deputy Chief Manis signed additional authorizations for consensual
intercepts on April 30 and May 29, 2019. Acting counsel, Anthony Picione,
AAG, also signed authorizations on June 28, July 27, and August 26, 2019. On
each of these forms, the targets are identified as Thomas "and as yet unidentified
individuals."
On July 29, 2019, after Thomas was recorded meeting with O'Donnell and
receiving cash from him, investigators stopped Thomas, who then gave them a
statement. Thomas told police he "reached out" to O'Donnell and asked for
"some financial help" because he was "having some personal difficulty," and
O'Donnell "said he'd help [Thomas] out." Thomas was introduced to O'Donnell
in 2016, during a time when he was looking for a lawyer for his campaign.
A-1472-23 4 However, he had not seen O'Donnell for years, until meeting him at an event in
February or March of 2019. Thomas contacted O'Donnell because he had known
him "for many years." Although they "don't have any business relationships,"
they had a "long relationship," and Thomas "trusted" and "look[ed] up to [him]
because of the counsel that he ha[d] given" Thomas.
Thomas admitted to taking cash from O'Donnell, which he claimed was a
loan. Although he was a "little hesitant" about taking the cash, he trusted
O'Donnell's judgment because O'Donnell was a lawyer and "a respectable man."
Thomas "didn't think that [O'Donnell] was doing anything illegal" because he
thought "the guy knows probably what he's doing."
Thomas admitted O'Donnell asked him for a position as counsel to the
Jersey City Board of Education (JCBOE), but Thomas responded, "that's not
possible." He claimed this occurred during "stand alone conversations"
unrelated to money, and O'Donnell's request was not a quid pro quo. Before
there was ever any transaction, Thomas sought O'Donnell's help on JCBOE's
real estate projects. O'Donnell declined Thomas's request to serve as an
appraiser but accepted his request for legal services regarding a request for
proposals involving the JCBOE. Thomas claimed he would never have
contacted O'Donnell if he knew he "was caught up with other things."
A-1472-23 5 In January 2021, the State presented its cases against Thomas, Cesaro, and
Windish to a state grand jury. A DCJ detective from the Office of Public
Integrity and Accountability testified for the State.
The detective explained the State had conducted a criminal investigation
into O'Donnell and his law firm. In late 2017, investigators confronted
O'Donnell with the evidence against him and he agreed to become a cooperating
witness, including wearing a recording device while interacting with individuals
who had sought financial assistance from him in the past.
O'Donnell advised investigators that one such individual was Windish,
who was first elected to the Mount Arlington Borough Council in 2010, the same
year O'Donnell was retained as the borough's attorney. O'Donnell's contract
with the borough was renewed on an annual basis.
In 2018, Windish was running for reelection. O'Donnell told investigators
that Windish had approached him for a $7,000 donation for his campaign. On
May 1, 2018, O'Donnell recorded a conversation in which Windish said he
needed "seven." On May 4, 2018, in a recorded communication, Windish
repeated he needed $7,000. When Windish mentioned that he did not know how
he would ever repay O'Donnell, O'Donnell responded by asking Windish to
promise that O'Donnell would "always be [Windish's b]orough [a]ttorney."
A-1472-23 6 O'Donnell said this was the "only quid pro quo" and Windish responded: "You'll
always be most definitely, leave no doubt in your mind." Windish also said
O'Donnell would always have his support. In a May 10, 2018, recorded
conversation, Windish again confirmed his request for $7,000.
Windish and O'Donnell met in person on May 14, 2018. The meeting was
recorded. O'Donnell gave Windish an envelope with $7,000 in cash. O'Donnell
again asked Windish to commit to backing him as borough attorney, and
Windish responded: "You got it."
O'Donnell reported to investigators that at a political fundraiser in January
2018, Cesaro, a Morris County Commissioner, asked for his financial assistance.
In exchange, Cesaro offered to secure more work for O'Donnell in Morris
County. The State began to record conversations between both men.
In a recorded conversation on April 20, 2018, Cesaro agreed to support
O'Donnell as tax counsel in exchange for money. In a recorded conversation on
May 1, 2018, Cesaro repeated his support. O'Donnell said he wanted to be tax
counsel for Parsippany Township, and Cesaro promised to support him for the
position in exchange for O'Donnell providing Cesaro with financial assistance
for his reelection campaign.
A-1472-23 7 On May 7, 2018, during a recorded conversation, Cesaro and O'Donnell
agreed to meet the following day. The pair met on May 8, 2018, and O'Donnell
was recorded giving Cesaro an envelope with $10,000 in cash and five checks
totaling $2,350 in campaign contributions. O'Donnell reiterated he wanted tax
work, and asked Cesaro to "open doors" for him and speak with county counsel
about the issue. Cesaro agreed.
The following day, in a recorded communication, Cesaro expressed that
he wanted to return the cash to O'Donnell because he preferred the money to
come through straw donors. Both men met on May 11, 2018, and Cesaro
returned the cash to O'Donnell. Then they discussed the use of straw donors.
O'Donnell said he would try to get additional straw donor checks to Cesaro by
May 21, 2018.
On May 19, 2018, O'Donnell attended a fundraiser for Cesaro. He was
recorded providing Cesaro with: $4,800 in cash; two checks of $2,600 each
drawn on undercover accounts funded by the State; a third check for $150 from
O'Donnell's firm; and New Jersey Law Enforcement Election Commission
(ELEC) forms filled out for each check. O'Donnell told Cesaro the checks for
$2,600 were from straw donors. When Cesaro later filed the ELEC reports, he
reported both straw donor checks received from O'Donnell.
A-1472-23 8 The detective's grand jury testimony concluded with the evidence against
Thomas. O'Donnell told investigators he first met Thomas in 2016, when
Thomas was running for a JCBOE seat. At that time, Thomas asked O'Donnell
for a $10,000 cash donation, but O'Donnell never gave him the money.
On February 27, 2019, O'Donnell spoke with Thomas at a political event.
During the recorded conversation, they briefly discussed Thomas's upcoming
campaign for reelection to the JCBOE, and O'Donnell asked Thomas to call him.
Over the next few months, O'Donnell and Thomas exchanged several
telephone calls, and on May 1, 2019, they met at a diner. Thomas was recorded
telling O'Donnell that he wanted to raise "about 100" for the JCBOE election,
and "150" for an anticipated run for Jersey City Council. O'Donnell informed
Thomas he had "a tremendous amount of . . . financial resources," and asked
Thomas "how much do you really think . . . what do you expect from me? What
do you want?" Thomas responded he wanted O'Donnell's help in raising
"somewhere between [thirty-five] and [forty-five]" for the JCBOE election but
would need "a larger lift from [O'Donnell for the council race.] Maybe [seventy-
five] or so, that is what I am looking for. I have a good network . . . but if you
can help me raise [thirty] to [forty percent], that will take a lot of pressure off
of me."
A-1472-23 9 Both men met again on June 3, 2019. During this recorded conversation,
O'Donnell referred to their prior conversation, in which Thomas had asked him
"to raise [thirty-five]." O'Donnell responded he could get that sum within a
week. Thomas said "Okay[,]" and O'Donnell then said: "So when the time
comes . . . this is all I'm asking. I just want you to consider me as [s]pecial
[c]ounsel to the [b]oard. That's all I'm asking." Thomas responded "Done[,]"
and added: "I will tell you how I will bring you on. I bring you on as [s]pecial
[c]ounsel for [the] [r]eal [e]state [a]dvisor." When O'Donnell complimented
Thomas on the idea, Thomas responded: "Yeah, nobody questions anything . . .
nobody questions all that stuff."
On June 7, 2019, O'Donnell had a recorded telephone call with Thomas.
They discussed a meeting with the JCBOE business administrator because
Thomas wanted O'Donnell to start on appraisal work for several JCBOE
properties.
The pair met again on June 17, 2019. During the recorded meeting, they
discussed the BOE having hired O'Donnell to provide appraisal services for
several buildings. O'Donnell then handed Thomas an envelope containing
$10,000. O'Donnell remarked "I thank you for coming through. I have never
got a job this quickly." Later the same evening, O'Donnell had a recorded phone
A-1472-23 10 conversation with Thomas, in which Thomas confirmed the business
administrator would contact O'Donnell regarding the property appraisals.
On July 11, 2019, O'Donnell had a recorded phone conversation with
Thomas, during which the two agreed to meet in person on July 29. Thomas
asked O'Donnell to bring the balance of the amount originally requested. The
pair met on July 29, and O'Donnell was recorded giving Thomas an envelope
containing $25,000 in cash. As Thomas took the envelope, he said: "Thanks
Matt, I appreciate it." Investigators subsequently stopped Thomas.
Windish was indicted on: second-degree official misconduct, N.J.S.A.
2C:30-2; second-degree bribery in official and political matters, N.J.S.A. 2C:27-
2; and second-degree acceptance or receipt of an unlawful benefit by a public
servant for official behavior, N.J.S.A. 2C:27-10(a). Cesaro was separately
indicted on: second-degree official misconduct, N.J.S.A. 2C:30-2; second-
degree bribery in official and political matters, N.J.S.A. 2C:27-2; second-degree
acceptance or receipt of an unlawful benefit by a public servant for offici al
behavior, N.J.S.A. 2C:27-10(a); third-degree tampering with public records or
information, N.J.S.A. 2C:28-7(a)(2); fourth-degree falsifying or tampering with
records, N.J.S.A. 2C:21-4(a); and fourth-degree concealment or
misrepresentation of contributions or expenditures, N.J.S.A. 19:44A-21(b).
A-1472-23 11 Thomas was separately indicted on: second-degree official misconduct,
N.J.S.A. 2C:30-2; second-degree pattern of official misconduct, N.J.S.A. 2C:30-
7(a); second-degree bribery in official and political matters, N.J.S.A. 2C:27-2;
and third-degree acceptance or receipt of an unlawful benefit by a public servant
for official behavior, N.J.S.A. 2C:27-10(a).
In October 2021, O'Donnell entered a second plea agreement, which
contained a broader agreement not to prosecute. This agreement also required
he pay restitution.
Following the indictments, there were several discovery disputes.
Thomas's counsel demanded: "[a]ll discovery relating to investigations initiated
by the State involving . . . O'Donnell as a cooperating witness for the State
regardless if they resulted in criminal charges or not;" "[t]o the extent not all
crimes of . . . O'Donnell or O'Donnell McCord [1] are reflected in documents
possessed by the State, provide a list of all crime(s) believed to have been
committed by . . . O'Donnell or O'Donnell McCord[,] which the State has agreed
to not prosecute;" and "all information presented to . . . [Deputy Chief] Manis,
which led to the signing of the consensual intercept forms dated April 30th, May
29th, June 28th, July 27th and August 26[], 2019."
1 This is the name of O'Donnell's former law firm. A-1472-23 12 In response, the State cited State v. Hernandez, 225 N.J. 451 (2016) in
support of its position that Thomas did not have the right to discovery of files in
unrelated cases involving the same cooperating witness. It asserted there were
"no nonprivileged documents" responsive to Thomas's "request for 'a list of all
crime(s) believed to have been committed by . . . O'Donnell or O'Donnell
McCord in which the State has agreed to not prosecute.'" The State's privilege
log showed only one document withheld on the grounds of privilege. It
represented it had produced all non-privileged documents responsive to
Thomas's request for the information presented to Deputy Chief Manis, leading
to his authorization of the consensual intercepts.
In June 2023, Thomas made an omnibus discovery motion. He argued he
had an attorney-client relationship with O'Donnell in 2016, which the State had
exploited in its investigation. Thomas claimed the State prosecuted him in
retaliation for a litigation the JCBOE filed against the State on April 29, 2019.
In relevant part, Thomas sought an order compelling the State to provide:
1. . . . any and all documentation and information that were reviewed by Deputy Chief . . . Manis and formed the basis for the issuance of the [c]onsensual [i]ntercept [f]orms dated February 27, 2019, April 30, 2019, May 29, 2019, June 28, 2019, July 27, 2019 and August 26, 2019;
....
A-1472-23 13 3. . . . any and all documents relating to their criminal investigations involving . . . O'Donnell, whether or not resulting in criminal charges, which are to be produced pursuant to a [p]rotective [o]rder or in camera review by the [c]ourt; [and]
4. . . . a list of all the crimes committed by . . . O'Donnell, the identification of the victims related thereto, and the amounts of restitution as identified in the plea agreements . . . .
Along with Thomas's motion, the motion judge also heard the State's motion to
quash a subpoena that had been served on O'Donnell's law firm.
On July 24, 2023, the judge issued an order, which denied the State's
motion to quash the subpoena, and granted in part and denied in part Thomas's
motion. The judge ordered the State to provide:
a) . . . any and all documentation and information that were reviewed by Deputy Chief . . . Manis[,] which formed the basis for the issuance of the [c]onsensual [i]ntercept [f]orms dated February 27, 2019, April 30, 2019, May 29, 2019, June 28, 2019, July 27, 2019 and August 26, 2019;
b) . . . any and all documents relating to their criminal investigations involving . . . O'Donnell, whether or not resulting in criminal charges, pursuant to a [p]rotective [o]rder; [and]
c) . . . a list of all the crimes committed by . . . O'Donnell, the identification of the victims related thereto, and the amounts of restitution . . . .
A-1472-23 14 In August 2023, Cesaro and Windish joined in the request for all documentation
reviewed by Deputy Chief Manis.
The State moved for reconsideration. It noted the information it obtained
from the August 23 and 24, 2023 interviews of O'Donnell, in which O'Donnell
stated he never had an attorney-client relationship with Thomas or Cesaro, or
their campaigns, but his firm had represented Windish personally in three
separate matters. The motion judge denied the motion on October 2, 2023.
The State moved for leave to appeal and asked the motion judge to stay
parts (b) and (c) of the July 2023 order. On November 8, 2023, the motion judge
ruled the July 24, 2023 order applied to all three defendants. He stayed parts
(b) and (c) pending appeal but ordered that pending appeal the parties must
comply with part (a).
On January 9, 2024, the State wrote to the motion judge and advised there
were no additional responsive documents with respect to part (a) of the July
2023 order. The State identified the documents already produced, which
contained "[t]he foundational knowledge that Deputy Chief . . . Manis had when
he issued the consensual intercept forms." "Deputy Chief Manis also relied upon
information he received through verbal updates and conversations[,]" but "[a]ny
factual information learned by Deputy Chief Manis through those verbal updates
A-1472-23 15 and conversations is reflected in the investigation reports . . . , which have
already [been] produced to the defense."
The State raises the following points on appeal:
POINT I
ORDERING THE STATE TO PRODUCE AN INTERNAL PROSECUTION MEMORANDUM VIOLATES BOTH WORK PRODUCT AND DELIBERATIVE-PROCESS PRIVILEGES.
POINT II
ORDERING PRODUCTION OF CASE FILES OF UNRELATED INVESTIGATIONS FOR IN CAMERA REVIEW CONFLICTS WITH NEW JERSEY SUPREME COURT PRECEDENT.
POINT III
DEFENDANTS HAVE NO BASIS TO OBTAIN FURTHER DISCOVERY REGARDING THE CONSENSUAL INTERCEPTS.
I.
We "generally defer to a trial court's disposition of discovery matters
unless the court has abused its discretion or its determination is based on a
mistaken understanding of the applicable law." State v. Ramirez, 252 N.J. 277,
298 (2022) (quoting State v. Brown, 236 N.J. 497, 521 (2019)). "A trial court
can abuse its discretion 'by failing to consider all relevant factors.' [We] . . .
A-1472-23 16 will set aside or modify such decisions if they do not comport with the applicable
law or do not give sufficient regard to pertinent considerations." Ibid. (internal
citation omitted).
"As codified in Rule 3:13-3, New Jersey has a tradition of what is often
described as an 'open file' model of reciprocal pretrial criminal discovery. . . .
Thus, criminal defendants are 'entitled to broad discovery' because it 'advances
the quest for truth.'" Id. at 295 (quoting State v. Scoles, 214 N.J. 236, 252
(2013)).
Nevertheless, despite a criminal defendant's general and automatic right to "broad discovery," . . . "criminal discovery has its limits." . . . Defendants are not permitted to conduct a "fishing expedition," or "transform the discovery process into an unfocused, haphazard search for evidence." Hence, information must be shown to be relevant to the issues in the case in order to be subject to disclosure.
[Id. at 296 (internal citations omitted).]
Relevant information has "'a tendency in reason to prove or disprove [a] fact of
consequence to the determination of the action[,]'" State v. Gilchrist, 381 N.J.
Super. 138, 146 (App. Div. 2005) (quoting N.J.R.E. 401), or lead to the
discovery of relevant evidence. See State v. Ballard, 331 N.J. Super. 529, 538
(App. Div. 2000).
A-1472-23 17 The State is duty bound to disclose evidence potentially favorable to the
defense. Brady v. Maryland, 373 U.S. 83, 87 (1963). The evidence need not be
directly exculpatory if it has value for impeachment purposes. State v. Nash,
212 N.J. 518, 544 (2013). "The Brady disclosure rule applies only to
information of which the prosecution is actually or constructively aware." State
v. Nelson, 155 N.J. 487, 498 (1998).
II.
A.
In point I, the State contends part (c) of the July 2023 order requiring it to
produce a March 16, 2018 internal prosecution memorandum was erroneous,
because this information is protected from disclosure by the work product and
deliberative process privileges. This part of the order also required the State to
"provide a list of all the crimes committed by . . . O'Donnell, the identification
of the victims related thereto, and the amounts of restitution."
The State's privilege log asserted the work product and deliberative
process privileges applied to an internal prosecution memorandum, which was
written by three deputy attorneys general to AAG Picione, entitled:
"Memorandum regarding proposed plea agreement – State v. MOD; State v.
O'Don[n]ell McCord, P.C." As we noted, Thomas then filed a motion to compel.
A-1472-23 18 He not only sought the March 2018 internal memorandum, but also asked the
court to order the State to create a document including the requested
information.
The State responded that the benefit of O'Donnell's bargain was set forth
in the plea agreement, which had been produced in discovery. It neither
possessed a document setting forth a list of crimes O'Donnell committed, nor
any document identifying the restitution to be paid by O'Donnell. At most, there
was the privileged, internal prosecution memorandum that addressed the
investigations in which O'Donnell was cooperating.
In granting the defense's request, the motion judge noted he understood
that a list of crimes did not exist, but ruled the information was relevant "on
possible bias that O'Donnell may have for assisting the State with their
investigations. For the defense, it is a 'list' of determining O'Donnell['s]
credibility as a cooperating witness for the State. N.J.R.E. 608." Pursuant to
N.J.R.E. 608(b), the judge reasoned O'Donnell's "character for truthfulness may
be attacked by evidence that the witness made a prior false accusation against
any person of a crime similar to the crime with which defendant is charged ."
Moreover, "the identification of O'Donnell's 'other' crimes is relevant evidence,
A-1472-23 19 pursuant to [N.J.R.E.] 401-402, because the evidence has a potentially
reasonable tendency to prove or disprove any facts of consequence."
The judge concluded the discovery was needed "to best determine
O'Donnell's position as a cooperating witness, in this case, because there were
other entities targeted by prior State investigations that heavily involved
O'Donnell's cooperation." He ordered "the State is to provide . . . defense
counsel with the discovery materials identifying the crimes, victims, and
restitution that allowed the State to determine an appropriate plea bargain with
O'Donnell to initiate the subsequent investigations, including that of . . .
Thomas."
The judge did not address the State's claims of privilege regarding the
March 2018 internal memorandum. The State's motion for reconsideration
reiterated the arguments based on privilege and requested the judge analyze
those claims as they related to the March memorandum.
The motion judge denied the reconsideration motion. His findings did not
squarely address the State's claims of privilege, except in the following excerpt:
"Any clarification I had . . . was . . . don't provide . . . any work product, internal
reports . . . or memorandum that's subject to Rule [3:13-3(e),] that's not
A-1472-23 20 referenced elsewhere in this decision, so don't invent new things to produce but
anything they asked for they get."
The State's discovery obligations under Rule 3:13-3(b), include that it
"must disclose any promise of favorable treatment or leniency offered to a
witness, including any plea or cooperation agreement setting forth the benefits
to the witness." Hernandez, 225 N.J. at 463. A cooperating witness's plea
agreement is discoverable because it is relevant to a defendant's right to confront
the witnesses against them and examine their biases, prejudices, or ulterior
motives to discredit the witnesses or affect the weight afforded to their
testimony. Id. at 464-65.
Pursuant to Rule 3:13-3(d), "work product" documents are not subject to
disclosure. The Rule "does not require discovery of a party's work product
consisting of internal reports, memoranda or documents made by that party or
the party's attorney or agents, in connection with the investigation[ or]
prosecution . . . of the matter." Ibid.
The work product privilege is designed to protect from pretrial disclosure
an attorney's mental processes and litigation strategies. State v. Mingo, 77 N.J.
576, 584 (1978) (citing State v. Montague, 55 N.J. 387, 401 (1970)). It
"prohibits disclosure of certain materials prepared by an attorney in anticipation
A-1472-23 21 of litigation, and thereby 'creates a zone of privacy in which an attorney can
investigate, prepare, and analyze a case.'" State v. DeMarco, 275 N.J. Super.
311, 316 (App. Div. 1994) (quoting In re Grand Jury Subpoena Dated Nov. 8,
1979, 622 F.2d 933, 935 (6th Cir. 1980)).
The work product privilege "is not absolute." United States v. Nobles,
422 U.S. 225, 239 (1975). It may be overcome through a strong showing of
need that the information sought is both relevant and necessary to a fair
determination of the issues. State v. Mitchell, 164 N.J. Super. 198, 202 (App.
Div. 1978).
"The deliberative process privilege is a doctrine that permits the
government to withhold documents that reflect advisory opinions,
recommendations, and deliberations comprising part of a process by which
governmental decisions and policies are formulated." In re Liquidation of
Integrity Ins. Co., 165 N.J. 75, 83 (2000). The privilege "is rooted in the notion
that the sovereign has an interest in protecting the integrity of its deliberations."
Ibid.
The document the State seeks to protect must be: (1) "generated before
the adoption of an agency's policy or decision"; and (2) "deliberative in nature,
containing opinions, recommendations, or advice about agency policies." Id. at
A-1472-23 22 84-85. "Purely factual material that does not reflect deliberative processes is
not protected." Id. at 85. However, "a record, which contains or involves factual
components, is entitled to deliberative-process protection when it was used in
the decision-making process and its disclosure would reveal deliberations that
occurred during that process." Educ. L. Ctr. v. N.J. Dep't of Educ., 198 N.J.
274, 280, 299-300 (2009).
"[A] litigant may obtain deliberative process materials if [their] need for
the materials and the need for accurate fact-finding override the government's
significant interest in non-disclosure." In re Liquidation of Integrity Ins. Co.,
165 N.J. at 85. "As with any privilege, the party seeking such documents bears
the burden of showing a substantial or compelling need for them." Ibid. To
determine whether the privilege has been overcome the court considers "1) the
relevance of the evidence; 2) the availability of other evidence; 3) the
government's role in the litigation; and 4) the extent to which disclosure would
hinder frank and independent discussion regarding contemplated policies and
decisions." Id. at 85-86. The deliberative process privilege is generally
overcome only in "exceptional cases." Id. at 85.
The March 2018 memorandum is not in the appellate record. Regardless,
the record lacks an analysis of the State's privilege claims pursuant to the legal
A-1472-23 23 principles we have outlined above. For these reasons, we vacate and remand
this aspect of the order and direct the motion judge to conduct an in camera
review of the document and make findings regarding whether it is protected by
the privilege(s) asserted by the State.
B.
A court may order discovery beyond what is required in the Rules of
Court, but only if it will "further the truth-seeking function or ensure the fairness
of a trial." Hernandez, 225 N.J. at 463 (quoting State in the Int. of A.B., 219
N.J. 542, 560 (2014)). The court should consider whether the evidence would
contribute to an adequate defense, and whether the evidence could be obtained
from another source. A.B., 219 N.J. at 555. "When a defendant seeks discovery
outside of the categories permitted by our court rules, [they] bear[] the burden
of establishing need." Ibid. (citation omitted).
That said, the Rules of Court require only the production of documents
already in existence that are within the State's possession. State v. Chambers,
252 N.J. 561, 582-83 (2023); see also State v. Tier, 228 N.J. 555, 565 (2017)
(holding a trial court abused its discretion requiring defendant to generate a
witness statement where none exists, contrary to Rule 3:13-3).
A-1472-23 24 The State had no legal obligation to create a document for the defense to
use in cross-examining O'Donnell. It produced O'Donnell's plea agreement.
And as regards O'Donnell's credibility or potential for bias, it is O'Donnell's
understanding of his sentencing exposure, and the value of his plea agreement,
that is probative on these issues. Davis v. Alaska, 415 U.S. 308, 317-18 (1974);
State v. Jackson, 243 N.J. 52, 73 (2020) (citing United States v. Ambers, 85 F.3d
173, 176 (4th Cir. 1996)). For these reasons, we reverse the portion of the
motion judge's order requiring the State to create "a list of all the crimes
committed by . . . O'Donnell, the identification of the victims related thereto,
and the amounts of restitution" O'Donnell must pay.
III.
In point II, the State seeks reversal of part (b) of the July 2023 order. It
argues this portion of the order, which compelled it to "provide any and all
documents relating to [its] criminal investigations involving . . . O'Donnell,
whether or not resulting in criminal charges, pursuant to a [p]rotective [o]rder"
was erroneous as a matter of law.
The judge found this discovery relevant
because there is a possibility that the documents could support (1) Thomas's claim that the State somehow exploited a purported attorney/client relationship between O'Donnell and Thomas; (2) Thomas's claim of
A-1472-23 25 entitlement to statements made by O'Donnell pursuant [to] N.J.R.E. 608; and, (3) to determine if O'Donnell discussed other crimes he committed not referenced in his statements contained in the discovery.
Investigations involving O'Donnell are relevant in this case because of the role he played as a main and cooperating witness.
Pursuant to Rule 3:13-3(f), the judge concluded this information was
"crucial to this case and to the defense's argument." He ordered it turned over
"for in camera review or subject to a protective order." Pursuant to Rule 3:13-
3(e), the judge noted his order excluded "[a]ny party's work product[;] internal
reports[; and m]emoranda."
In Hernandez, the defendants claimed the discovery rules granted them
the right to: "sift through the files in the unrelated investigations . . . in search
of false and contradictory statements"; impeach a cooperating witness under
N.J.R.E. 608; refresh the witness's recollection under N.J.R.E. 612; and
"uncover false criminal accusations against others that would be admissible
under N.J.R.E. 608." 225 N.J. at 465-67. Our Supreme Court held the
defendants were not entitled to discovery from unrelated cases merely because
their case had the same cooperating witness as the unrelated cases. Id. at 464.
The defendants also had no right to discovery of all statements made in every
A-1472-23 26 case in which the witness has cooperated with the State. Id. at 453-54. The
Court explained:
Although our discovery rule generally requires that the State provide all evidence relevant to the defense of criminal charges, it does not open the door to foraging through files of other cases in search of relevant evidence. The only information discoverable in the unrelated cases that is relevant to the defense at this point are the cooperation agreements between the State and the [w]itness and any violations of the agreements, such as material false statements made by the [w]itness and known to the State.
[Ibid.]
Defendants must rely upon the State to comply with its obligation to turn over
exculpatory information. Id. at 465-67. "An open-ended search of unrelated
investigative files in the hope that something may turn up that has impeachment
value is not sanctioned by our discovery rule or jurisprudence." Id. at 467.
The Court added:
We fully understand that the reliability of State informants and cooperating witnesses must be subject to special scrutiny because the charge-reduction and sentence-reduction incentives given to such witnesses have the capacity to induce false testimony. That is why the State is required to make complete disclosure of the cooperation and plea agreements. Through defendants' cross-examination and summation, the jury will know that the [w]itness has a powerful reason to curry favor with the State. In addition, the State is required as part of its discovery obligation to disclose
A-1472-23 27 known material false statements made by the [w]itness in the unrelated investigations because such disclosures bear on whether the State is enforcing or altering its cooperation agreement. We have no reason to believe that the State will not fulfill its professional responsibilities in making any required disclosures.
[Id. at 468.]
We conclude part (b) of the order entered here was contrary to Hernandez.
Like the defendants in Hernandez, here defendants argued for discovery of the
other unrelated case files on grounds of their potential to contain information to
impeach O'Donnell. Given the State's obligation to turn over exculpatory
information, including material evidence that could be used to impeach the
State's witnesses–namely prior false accusations subject to N.J.R.E. 608(b)–or
evidence of other crimes committed by O'Donnell, defendants were not entitled
to independently search through the State's files from unrelated criminal
investigations to uncover that information for themselves. Indeed, "[t]he ability
to question adverse witnesses . . . does not include the power to require the
pretrial disclosure of any and all information that might be useful in
contradicting unfavorable testimony." Pennsylvania v. Ritchie, 480 U.S. 39, 53
(1987).
The attorney-client relationship also was not grounds to grant this
discovery. Aside from whether O'Donnell and Thomas ever had an attorney-
A-1472-23 28 client relationship, even with the admitted attorney-client relationship between
O'Donnell and Windish, it is the defendants who are in the best position to
provide evidence that O'Donnell exploited their attorney-client relationships
through his cooperation.
IV.
In point III, the State asserts that it complied with part (a) of the July 2023
order requiring it to produce "any and all documentation and information that
were reviewed by Deputy Chief . . . Manis[,] which formed the basis for the
issuance of the [c]onsensual [i]ntercept [f]orms." Nevertheless, the State asks
us to vacate this part of the order, because defendants have no credible challenge
to the consensual intercepts or a basis to obtain further discovery regarding
them. Defendants are not "entitled to an accounting" of the documents and
information considered by Deputy Chief Manis, as it has no relevance to the
validity of the intercepts. According to the State, the record demonstrates the
consensual intercepts were authorized because they would likely lead to relevant
evidence of corrupt conduct by defendants.
The motion judge reasoned the information regarding the consensual
intercepts was relevant pursuant to Rule 3:13-3(b)(1)(J) because "all documents
and materials mentioning . . . Thomas prior to May 1, 2019, . . . may shed light
A-1472-23 29 on whether Thomas was unfairly targeted for investigation solely due to the
[JCBOE]'s lawsuit against the State." The judge noted that "[p]rior to April 29,
2019, there was no evidence or discovery on Thomas's participation in any
criminal conduct before his arrest on July 29, 2019. . . . [D]efense counsel seeks
information . . . as to why Thomas was investigated to begin with, thus
signifying its relevance." The judge also found this information would help
accelerate the case and even though "the State argued that a low standard of
reasonableness is needed to sign the consensual intercept form, any and all
information on what led to the State's reasonableness standard to be satisfied
should be provided to the defense."
On the motion for reconsideration, the State indicated it had complied with
part (a) of the July 2023 order because it produced all documentation reflecting
the information developed in the investigation and supporting Deputy Chief
Manis's approval of the consensual intercepts. The judge reasoned that even
though the State claimed it had already turned over the documents, "the order is
going to remain in place . . . . And if defense counsel is not satisfied that they've
been sufficiently pointed in the right direction, they can . . . try to work that out
with counsel, . . . and if not, bring it to the attention of this [c]ourt."
A-1472-23 30 On January 9, 2024, the State advised the defense it reviewed the
discovery it previously provided responsive to part (a) and "identified no
additional responsive documents." It then identified the documents it already
produced, which contained "[t]he foundational knowledge that Deputy Chief . . .
Manis had when he issued the consensual intercept forms . . . . Deputy Chief
Manis also relied upon information he received through verbal updates and
conversations." The State represented that the investigation reports already
produced to the defense contained "[a]ny factual information [he] learned . . .
through those verbal updates and conversations is reflected in the investigation
reports."
The New Jersey Wiretapping and Electronic Surveillance Control Act,
states:
It shall not be unlawful under this act for:
c. Any person acting at the direction of an investigative or law enforcement officer to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception; provided, however, that no such interception shall be made without the prior approval of the Attorney General or [their] designee or a county prosecutor or [their] designee;
A-1472-23 31 [N.J.S.A. 2A:156A-4(c).]
N.J.S.A. 2A:156A-21 lays out the conditions on which any aggrieved person in
a matter may move to suppress the contents of an intercepted communication.
Discovery regarding consensual intercepts is permitted where the
intercepts are expected to yield relevant information. State v. Martinez, 461
N.J. Super. 249, 275 (App. Div. 2019). However, courts may also consider
whether the intercepts were premised upon an impermissible motive, including
animus against the defendant, and whether the intercepts violated a defendant's
constitutional right, or the attorney-client privilege. Id. at 275-76.
Pursuant to these principles, we discern no error in part (a) of the court's
order. The documentation supporting the authorization of the consensual
intercepts was relevant to the State's ability to admit the intercepted
communications into evidence and defendants' challenges to the lawfulness of
the intercepts.
We decline to wade into the arguments regarding the admissibility of the
intercepts and their lawfulness because the issue is not ripe for review as the
trial court had not yet held a hearing to resolve it. As the motion judge
mentioned, the trial court may address any complaints regarding the
A-1472-23 32 completeness of discovery relating to the authorizations of consensual intercepts
as to the defendants.
For these reasons, part (a) of the July 24, 2023 order is affirmed; part (b)
is reversed; and part (c) is reversed in part, and vacated and remanded in part,
for further proceedings consistent with this opinion. We do not retain
jurisdiction.
A-1472-23 33