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Wylie v. Mills

Decided: April 19, 1984.

GEORGE N. WYLIE AND JOAN WYLIE, PLAINTIFFS,
v.
DENNIS R. MILLS; DORIS M. FIORITO; CITY OF ELIZABETH; STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION; NEW JERSEY TURNPIKE AUTHORITY; PORT AUTHORITY OF NEW YORK AND NEW JERSEY; DAIDONE ELECTRIC, INC.; HESS BROTHERS, INC.; CHARLES SUKENEK, HOWARD NEEDLES, TAMMEN & BERGENDOFF AND TRAFFIC LINES, INC., DEFENDANTS, AND DORIS M. FIORITO AND DENNIS R. MILLS, THIRD PARTY PLAINTIFFS, V. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, THIRD PARTY DEFENDANT. DENNIS R. MILLS, PLAINTIFF, V. GEORGE N. WYLIE, PUBLIC SERVICE ELECTRIC AND GAS COMPANY, AND CITY OF ELIZABETH, DEFENDANTS. DORIS M. FIORITO, INDIVIDUALLY, DORIS M. FIORITO, AS PARENT AND NATURAL GUARDIAN OF PETER FIORITO, III, A MINOR, BERNICE T. FIORITO, INDIVIDUALLY; AND BERNICE T. FIORITO, AS PARENT AND NATURAL GUARDIAN OF FRANK FIORITO, III, A MINOR, PLAINTIFFS, V. GEORGE N. WYLIE; PUBLIC SERVICE ELECTRIC AND GAS COMPANY, A PUBLIC UTILITY CORPORATION OF NEW JERSEY AND DENNIS R. MILLS; CITY OF ELIZABETH, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS



Lechner, J.s.c.

Lechner

[195 NJSuper Page 334] These consolidated cases present for consideration the issue of an asserted qualified privilege for a corporate internal evaluative

report. The basic issue is whether self-evaluation of corporate actions should be encouraged and protected from discovery in litigated matters, as a matter of public policy. The issue is novel in this jurisdiction in that it has not been the subject of a reported decision in New Jersey. However, several federal courts have recognized this nascent privilege.

On July 1, 1982, George Wylie, an employee of defendant Public Service Electric and Gas Company (PSE & G), was involved in an automobile accident which gave rise to this action. During depositions of PSE & G employee Mr. James McAlpine, defendant City of Elizabeth learned of the existence of several PSE & G documents. The City of Elizabeth sought production of the document entitled "Elizabeth Electric Transmission & Distribution Committee Investigation -- Automobile Accident" (the "Committee Investigation Report"). PSE & G refused to produce this document and asserted various privileges. The parties agreed during a case management conference to have this court examine, in camera, the document at issue and determine the efficacy of PSE & G's asserted privileges.

The automobile accident occurred at the intersection of North and Dowd Avenues in Elizabeth, New Jersey. James McAlpine, PSE & G's Division Manager of the Elizabeth Division, Electric Transmission and Distribution Department, instituted an internal PSE & G investigation of the accident. The purpose of the investigation was to determine whether PSE & G should alter its procedures to avoid future injuries to employees. The investigation was neither pursued in anticipation of litigation, nor connected with an investigation conducted by the Claims or Legal Departments of PSE & G. The Committee Investigation Report was prepared at the conclusion of the committee investigation.

In a brief submitted to the court, PSE & G raised three objections to the requested production of the Committee Investigation Report. First, PSE & G argued that the report, prepared to further protective measures, would not be admissible

during trial*fn1 and would not lead to the discovery of admissible evidence. As such, it contends discovery pursuant to R. 4:10-2(a) must be denied. Second, PSE & G argued that the report was protected by the attorney-client privilege and the attorney work-product privilege. Third, PSE & G asserted that public policy encouraging self-critical analysis accorded the Committee Investigation Report a qualified privilege. Defendant City of Elizabeth denied that any privilege protected the requested document.

The argument that disclosure of the Committee Investigation Report may not lead to the discovery of admissible evidence is not persuasive. The report examines the accident which is the subject of the litigation. There is thus the possibility that any disclosed information may provide a link in the chain of discovery of admissible evidence. Given the preference for broad discovery, courts "should not stifle discovery by requiring a showing of the particular admissible end result that is sought." Stout v. Toner, 125 N.J. Super. 490, 491 (Law Div.1973). Accordingly, R. 4:10-2(a) which limits the scope of permissible discovery to ". . . any matter, not privileged, which is relevant to the subject matter involved in the pending action . . ." does not support an argument for nondisclosure of the Committee Investigation Report with regard to discovery of admissible evidence.

PSE & G's second contention that the Committee Investigation Report is protected by the attorney-client privilege and/or work-product privilege is also rejected. The attorney-client privilege extends to confidential communications between corporate employees and corporate counsel. See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981); Reardon v. Marlayne, Inc., 83 N.J. 460 (1980). PSE & G has not shown any communications existed between the members of the investigation committee and corporate

counsel during the course of the investigation, or that these communications, if made, were intended to remain confidential. The mere fact that the Committee Investigation Report was later made a part of PSE & G's legal file is insufficient to raise the protection of the attorney-client privilege. Similarly, the work-product rule may not be invoked given the present circumstances. The Committee Investigation Report was not prepared in anticipation of litigation nor was it the result of the thought processes of counsel. Rather, the report was issued at the conclusion of a safety investigation conducted in the ordinary course of business.*fn2

With regard to the third prong of the PSE & G defense to the production of the Committee Investigation Report -- the nascent privilege of self-critical analysis -- a more formidable and persuasive argument is advanced. The doctrine of "privileges" is dynamic in nature not static. A privilege develops when the "public need for disclosure" is outweighed by the "public need for confidentiality" of information. E.g., Hickman v. Taylor, 329 U.S. 495, 509-12, 67 S. Ct. 385, 392-394, 91 L. Ed. 451 (1947) (work-product doctrine); Upjohn v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584 (1981) (attorney-client communications); Hague v. Williams, 37 N.J. 328, 336 (1962) (physician-patient communications). Even though privileges ". . . are not lightly created nor expansively construed . . ...


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