New Jersey’s Work-Product Doctrine
There is no Presumptive Rule that Materials Collected Prior to the Commencement of Litigation are Not Protected by New Jersey’s Work Product Doctrine
The New Jersey Appellate Division recently held in the matter of Paladino v. Auletto Enter., Inc. (No. A-0232-18T1, June 6, 2019) that there is no per se rule that materials collected before the commencement of litigation are not prepared in anticipation of litigation and that such materials may therefore be protected by the work-product doctrine. The court’s decision clarifies the standard for evaluating a claim of the work-product privilege and makes clear that any discovery request for the production of materials that were collected before litigation must be evaluated on a case-by-case basis.
The plaintiff in Paladino was a guest at a wedding reception held at defendant’s catering facility when she fell down a staircase and sustained injury. After notice of the incident was supplied to the defendant’s general liability insurance carrier, a senior claims adjuster for the defendant’s insurer retained an investigator to photograph the accident scene and obtain statements from the plaintiff and representatives of the defendant. The claims examiner explained that her purpose in retaining this investigator was to “prepare a defense for [defendant] in the event that [plaintiff] filed a lawsuit.” Within three weeks of the plaintiff’s accident and before a lawsuit was ever initiated, the investigator collected recorded statements, extensively photographed the accident scene and prepared a diagram of the scene.
Approximately nine months later, the plaintiff and her husband filed a lawsuit against the defendant. During discovery, the defendant disclosed that an investigator had collected the above-mentioned materials but refused to produce those materials under the assertion that they were protected by the work-product privilege. The plaintiff filed a Motion to Compel the production of the materials and the trial court granted the Motion. The trial court specifically noted that the photographs and statements must be produced because they were obtained before litigation and the insurer “may have” had interests apart from protecting the insured’s rights and therefore may have not been acting in anticipation of litigation. Id. at 6.
The defendant appealed from the trial court’s order that compelled it to produce materials obtained by an investigator hired by the defendant’s insurance carrier before a Complaint had been filed and before defense counsel was retained. On appeal, the defendant argued that the documents were protected under the work-product doctrine and contended that the plaintiff had failed to satisfy the requirements needed to obtain production of work-product protected materials. Before rendering its final decision, the Appellate Division thoroughly outlined Rule 4:10-2(c) concerning the withholding of “privileged” information and the history of the New Jersey work-product doctrine.
Ultimately, the Appellate Division reversed the trial court’s order compelling production of the materials and remanded the issue for reconsideration of the plaintiff’s Motion. The trial court’s application of a per se or presumptive rule that materials obtained prior to the commencement of litigation could not be deemed prepared in anticipation of litigation was rejected. Most importantly, the Appellate Division held as follows:
“Consistent with the language of Rule 4:10-2(c), we hold that there is no per se or presumptive rule that materials prepared or collected before litigation are not prepared in anticipation of litigation. Instead, as set forth in Rule 4:10-2(c), there is a multi-part, fact specific test. The first inquiry is whether the materials were prepared or collected in anticipation of litigation or trial by another party or that party’s representatives. If so, to obtain the materials, a party must satisfy a two-part standard. The party seeking the materials must (1) show a substantial need for the discovery, and (2) demonstrate that he or she is unable, without undue hardship, to obtain the substantial equivalent of the materials.” Paladino at 2.
The Paladino decision confirms that any request for production of materials collected before the commencement of litigation and potentially protected by the work-product doctrine should be evaluated on a case-by-case basis.