In the instant dissolution proceeding early discovery, chambers conferences, and motions have shown that the marital estate subject to equitable distribution may consist of, inter alia, approximately $6,000,000.00 in bearer bonds. Both plaintiff and defendant deny possession of the bonds and accuse the other of hiding them either domestically, in off shore banks or in other places unknown. Needless to say this is bitter litigation which after twenty-nine months on the trial calendar still is in the discovery stage.
Defendant now comes before the Court on motion seeking leave to depose the detective hired by the plaintiff's attorney.
Defendant's attorney by certification alleges the subject detective, admittedly hired by plaintiff, has information about the issues in this case. He claims discovery is necessary and appropriate so as to avoid surprise at trial. The Court notes that defendant's attorney alludes to unspecified acts of wrongdoing. He is not clear as to what he wants to discover. The defendant inquires rhetorically in his certification how did this detective know of a private Carribean trip that ended in defendant's arrest in Florida as a result of plaintiff wife obtaining a Florida writ of ne exeat but for wiretaps or other surreptitious means. While seeking unspecified discovery from this non-party; albeit, "information", defendant also wants to copy the documents allegedly in the detective's possession.
Plaintiff's attorney responds admitting the hiring of the detective and stating that the investigator is counsel's agent. Counsel then claims that the efforts of the detective constitute privileged work product. Further, it has not yet been determined if the detective will be a lay or expert witness and argument is proffered that if counsel did what the detective did, it clearly would be work product and privileged. Since the detective is the attorney's agent, the privilege attaches to him and his work. Plaintiff says she, her attorney and his agent
only seek to learn what defendant already knows; hence, he cannot complain.
In response, defendant's counsel says they do not want the detective's work product or material prepared for trial but rather documents and evidence long in existence and only recently obtained by plaintiff. If the documents are considered work product, then ad absurdum all documents delivered to counsel would be privileged. This clearly is not the intent and application of the work product rule.
R. 5:5-1 governs discovery in family matters. Court leave is required to take discovery of third parties (R. 5:5-1(d)) except for the production of documents (R. 4:18-1), requests for admissions (R. 4:22-1) and copies of documents referred to in pleadings (R. 4:18-2). These latter three categories are discoverable as of right.
R. 4:10-2(c) defines what materials are to be produced for discovery. This is the work product privilege. The attorney-client privilege is found in Evid.R. 26.
As to R.4:10-2(c), materials must be produced even if prepared for trial or for the party's representative only on a showing of substantial need and that the same are not obtainable without undue hardship.
Evid.R. 26 protects communications between the client and his attorney. The protection extends to agents of attorneys and specifically an investigator hired by an attorney. State v. Tapia, 113 N.J. Super. 322 (App.Div.1971).
Here, what is sought to be discovered by defendant is information about the defendant learned by plaintiff's counsel's agent. Without more from defendant, this Court cannot define what it is he seeks. Defendant says that he does not want thoughts, theories, notes or memoranda made by the detective. He only wants the detective to reveal and produce copies of documents obtained as ...