Opinion
Docket No. A-0746-03T3F
Argued March 16, 2004
Decided April 14, 2004
On appeal from the Superior Court of New Jersey, Law Division, Union County, UNN-L-5377-01 and UNN-L-5379-01.
Andrew Dwyer argued the cause for plaintiff-appellant/cross-respondent (Dwyer Dunnigan, attorneys; Mr. Dwyer and Kathleen Dunnigan, of counsel and on the brief).
Vito A. Gagliardi, Jr. argued the cause for defendants-respondents/cross-appellants Summit Anesthesia Associates, Summit Pain Management, 311 Realty, Larry DeAngelis, M.D., Toufit Boucherit, M.D., Scott Pacific, M.D., Neil Ross, M.D., Mitchell Jablons, M.D., and Roy Naturman, M.D. (Porzio, Bromberg Newman, attorneys; Mr. Gagliardi, of counsel; Thomas J. Rattay and Frank A. Custode on the brief).
Before Judges Pressler, Alley and Parker.
In this employment discrimination action brought by plaintiff, Joan Zyla, against her former employer, Summit Anesthesia Associates and some of its principals (collectively SAA), she appeals by leave granted. The appeal is from an order of the trial court denying her request to obtain a copy of a sexual harassment investigation report by Mary Jane Cooper, a lawyer retained by SAA to conduct an investigation after plaintiff and others had asserted sexual harassment complaints against it.
At the end of her investigation Cooper, as she had been retained to do, prepared a written report and plaintiff sought discovery of the report. The trial judge ruled that plaintiff was entitled to limited discovery regarding the investigation. In particular, in an order filed August 21, 2003, he limited discovery to "areas involving contact and communications with and reference[s] to Zyla." The court rejected plaintiff's request for the remainder of the report, however, particularly insofar as it involved the investigation of complaints made by persons other than plaintiff.
Plaintiff was SAA's office manager for about seven years until June 2001, the point at which she was dismissed. Claiming employment discrimination by way of hostile work place environment under the Law Against Discrimination, N.J.S.A. 10:51 to -48, she filed suit. A separate action by SAA against plaintiff for alleged misconduct during her employment was consolidated with plaintiff's action against SAA.
Also before us is the issue of the extent, if any, to which plaintiff is entitled to discovery of back-up materials for the Cooper report, such as statements by witnesses, interview transcripts, and so forth. As we understand the record, that issue was not determined by the trial court and the back-up materials were not reviewed in camera.
The Cooper report was furnished to us for our in camera review in connection with this appeal. It recounts an evidently thorough examination of sexual harassment complaints by plaintiff and other employees of SAA. At oral argument, SAA's counsel clarified his client's position which now is, as we understand it, that SAA's only reservation about producing the Cooper report in its entirety is that it wishes to reserve and thereby preserve its attorney-client privilege claims.
As a threshold matter, we are satisfied that plaintiff's request for the entire report, that is, portions that relate not only to plaintiff but also matters other than complaints by plaintiff, are plainly within the scope of permissible discovery. The information sought is encompassed by R. 4:102(a), which provides discovery as to material "relevant to the subject matter involved in the pending action. . . ." K.S. v. ABC Professional Corp., 330 N.J. Super. 288 , 291 (App.Div. 2000) (quoting R. 4:10-2(a). Our views are guided in part by the explanation of our Supreme Court in Payton v. New Jersey Turnpike Authority, 148 N.J. 524 (1997), which addressed the issue of discovery in a case claiming sexual harassment. In Payton, plaintiff sought discovery of materials relating to an investigation which defendant, together with in-house counsel, had conducted regarding plaintiff's claim of sexual harassment, and offered as an affirmative defense, while claiming privilege. Id. at 524-25.
The Court first addressed the issue of discovery generally noting that "[i]n determining whether materials relating to defendant's internal investigation are discoverable, therefore, we must evaluate, as an initial matter, their relevance to the issue raised in the litigation." Id. at 535. Plaintiff here asserts a hostile work environment due to sexual harassment, similar to both Payton and Lehmann v. Toys `R' Us, Inc., 132 N.J. 587 (1993), and retaliation for her complaints of the harassment.
The Court in Payton observed that:
Because of the importance of the remedial process in evaluating an employer's good faith in counteracting and attacking sexual harassment and in eliminating hostile work environment, we conclude that materials relating to an employer's internal investigation of alleged sexual harassment are relevant to a claim under the LAD and hence generally discoverable.
It is firmly established that "[e]vidence of sexual harassment directed at other women is relevant to both the character of the work environment and its effect on the complainant." Lehmann, supra, 132 N.J. at 611 . In our view it is beyond legitimate dispute that in this case, pursuant to the foregoing principles and under Connolly v. Burger King Corp., 306 N.J. Super. 344 (App.Div. 1997), statements by other women or documents relating to complaints of sexual harassment at SAA would be relevant to plaintiff's claims, at least for discovery purposes.
With respect to the attorney-client privilege, in its present form it is set forth as follows in N.J.S.A. 2A:84A-20 andN.J.R.E. 504:
(1) General rule. [C]ommunications between lawyer and his client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege (a) to refuse to disclose any such communication, and (b) to prevent his lawyer from disclosing it. . . .
Moreover, "[f]or a communication to be protected underN.J.R.E. 504, it must have been made in confidence between a lawyer and his client in the course of the professional relationship." Biunno, New Jersey Rules of Evidence, Comment 4 on N.J.R.E. 504 (2003).
[T]he privilege accords the shield of secrecy only with respect to confidential communications made within the context of the strict relation of attorney and client. The mere fact that [plaintiff's agent] is an attorney . . . is clearly insufficient. . . . [J]udicial scrutiny must focus upon both the nature of the relationship between [plaintiff's agent] and others and the type of information or communications involved."
[United Jersey Bank v. Wolosoff, 196 N.J. Super. 553 , 562-63 (App.Div. 1984).]
Performing an analysis similar to that used in Payton, we are satisfied that the attorney-client privilege does not protect the Cooper report. Cooper was hired to investigate allegations that a physician was engaging in inappropriate physical conduct, not to prepare for litigation, because there was no litigation at the time. Nor was her report prepared to provide legal advice, but rather consists mostly of a compilation of facts and witness interviews, which are not themselves subject to the privilege. Indeed, the apparent purpose of the investigation was to mollify a third party, Overlook Hospital, with which SAA had a substantial arms length contractual relationship, and to whom the essence of the Cooper investigation has already been disclosed, as the Cooper report itself indicates.
We are satisfied that the entire Cooper report is discoverable and not privileged and that it should be made available to plaintiff's counsel pursuant to a protective order. The protective order shall be crafted by the trial court after conferring with counsel. Consistent with Connolly, the use of a protective order in this context is intended to preserve confidentiality with respect to third parties who might otherwise be unduly prejudiced by the unwarranted release of sensitive information. 306 N.J. Super. at 349-50.
Accordingly, we reverse the trial court's denial of plaintiff's access to the Cooper report as it relates to matters other than plaintiff's own complaints, and we direct that the entire report be furnished to plaintiff's counsel subject to a protective order.
Additionally, we direct that the trial court conduct an in-camera review of the Cooper report's back-up materials, such as witness statements and interview transcripts, to determine whether they are discoverable by plaintiff under the principles to which we have referred. SAA's counsel should promptly furnish those back-up materials to the trial court for the court's in-camera review, together with a detailed log of all the back-up materials itemizing each and every objection, if any, that SAA has to the disclosure of each of the respective materials. The trial judge should confer with counsel at an early date to determine a schedule and procedure for the preparation of the protective order and for the in-camera review that we have ordered.
Accordingly, we reverse the order appealed from and remand to the trial court with the direction that it enter a protective order pursuant to which the entire Cooper report is to be produced to plaintiff's counsel and conduct an in-camera review of the back-up materials in a manner not inconsistent with this opinion.