LESLIE O. ROBERTSON v. THE STATE OF NEW JERSEY DEPARTMENT OF LAW & PUBLIC SAFETY

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                                       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,

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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.

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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




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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

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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

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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.




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