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Wagi v. West

August 18, 1989

EUGENE WAGI AND VALERIA WAGI, HIS WIFE, PLAINTIFF,
v.
SILVER RIDGE PARK WEST, DEFENDANTS/THIRD PARTY PLAINTIFF, V. R.F. DOSS, INC.; SCHOOR, DE PALMA, AND GILLEN; PAUL HULSE; AND TOWNSHIP OF BERKELEY, THIRD PARTY DEFENDANTS. GRACE ECKERT AND HOWARD ECKERT, HER HUSBAND, PLAINTIFF, V. SILVER RIDGE PARK WEST HOMEOWNERS ASSOCIATION, DEFENDANT/THIRD PARTY PLAINTIFF, V. R.F. DOSS, INC.; SCHOOR, DE PALMA, AND GILLEN; PAUL HULSE; AND TOWNSHIP OF BERKELEY, THIRD PARTY DEFENDANTS. MARGARET L. SAULINO AND JOSEPH R. SAULINO, HER HUSBAND, PLAINTIFF, V. SILVER RIDGE PARK WEST HOMEOWNERS ASSOCIATION, DEFENDANT/THIRD PARTY PLAINTIFF, V. R.F. DOSS, INC.; SCHOOR, DE PALMA AND GILLEN; PAUL HULSE; AND TOWNSHIP OF BERKELEY, THIRD PARTY DEFENDANTS. CLAIRE G. MAGUIRE, PLAINTIFF, V. GENERAL MOTORS CORPORATION, A CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF N.J., CHEVROLET MOTOR DIVISION, A BUSINESS ENTITY AUTHORIZED TO DO BUSINESS IN THE STATE OF N.J., TOWNE AND COUNTRY CHEVROLET, A BUSINESS ENTITY AUTHORIZED TO DO BUSINESS IN THE STATE OF N.J., A.B.C. MANUFACTURING (THIS NAME BEING FICTITIOUS, THE ACTUAL NAME IS UNKNOWN AT THE PRESENT TIME), X.Y.Z. DISTRIBUTING (THIS NAME BEING FICTITIOUS, THE ACTUAL NAME IS UNKNOWN AT THE PRESENT TIME), JOHN DOE ENGINEER (THIS NAME BEING FICTITIOUS, THE ACTUAL NAME IS UNKNOWN AT THE PRESENT TIME), AND MONROE H. EICHNER, DEFENDANTS. PEARL A. AUSTIN AND JOSEPH W. AUSTIN, HER HUSBAND, PLAINTIFFS, V. SHOP RITE OF MANAHAWKIN, DEFENDANT



Clyne, P.J.Cv.

Clyne

The above cases, although unrelated, have common discovery issues. Each presents its own procedural context and all arrive at this juncture at varying states of factual development. The cases involve the court in a decade-old conflict over the meaning of the term "work product," its interrelationship with the "lawyer-client privilege," and the showing required to overcome R. 4:10-2(c), once a party invokes its protections. Resolution of this conflict requires the court to address the following issues:

I. whether the names and addresses of those who have given witness statements must be revealed;

II. whether witness statements in the possession of a party should be turned over to an adversary given:

(A) the potential relevance of the lawyer-client privilege; or

(B) the clear applicability of the work-product concept contained within R. 4:10-2(c).

A review of the available authorities reveals that except in rare circumstances an attorney must reveal the names and addresses of witnesses who have given statements. On the other hand, statements of witnesses are, as a general matter, protected from revelation unless and until the party seeking those statements makes a showing sufficient to overcome the policies supporting those protections.

In Maguire v. General Motors Corporation, docket No. L-060952-86, plaintiff brought suit for personal injuries resulting from an accident, allegedly caused by defective brakes. Defendant hired a private investigator who took statements from three witnesses: an eyewitness, a convenience store manager

who often spoke to plaintiff on her way to and from work, and the owner of the auto body shop which towed and stored plaintiff's vehicle after the accident. All the statements were taken more than three years after the accident. At some point, plaintiff's counsel learned of the existence of these statements. The present motion for their production followed shortly thereafter.

Wagi v. Silver Ridge Park West, docket No. L-045557-87, is a consolidated action wherein three plaintiffs allege three separate falls on a stretch of sidewalk located in Berkeley Township, a named defendant. The township has taken the position that even if it was its responsibility to maintain the sidewalk, it still had no constructive or actual notice of a hazardous condition thereon, and thus, plaintiff cannot establish liability under the provisions of the New Jersey Tort Claims Act. N.J.S.A. 59:4-2, -3.

In pursuit of this argument, defendant Berkeley Township, by way of third-party complaint, brought suit against an engineering firm which formerly served as the township engineer. The township maintains that the engineering firm should have discovered the dangerous condition, and may be liable for some or all of what Berkeley must pay in the event of an adverse judgment. The engineering firm responds that it did discover the condition and reported same to the township prior to the date of the accidents.

The township, in certified answers to interrogatories, has admitted that it has a statement signed by a township executive which concerns the subject matter of the sidewalk in question. The engineering firm, joined by other parties, seeks to compel production of same.

In Austin v. Shop Rite of Manahawkin, docket No. L-69267-88, plaintiff alleges she suffered personal injuries after she slipped and fell on defendant's premises as a result of water seepage from an iced-melon display. Despite a request contained within interrogatories, defendant has refused to give

plaintiff the names and addresses of witnesses, copies of witness statements or dates that statements were taken, whether given to defendant itself or representatives of defendant's insurance carrier.

Plaintiff now moves for more specific answers to these and other interrogatories. Defendant cross moves for a variety of relief, including a protective order from what it views as oppressive and unduly burdensome discovery requests.

I.

The initial question is whether the names and addresses of witnesses must be revealed. One can argue that the lawyer-client privilege, or the concept of work product, protects such information from release. However, if a party did not have to reveal at least the names and the addresses of witnesses, then the question of the applicability of the lawyer-client privilege or the work product concept to those witnesses' statements would be meaningless. Cf. Reisch v. J & L Holding Company, 443 N.Y.S. 2d 638, 111 Misc. 2d 72 (N.Y.Sup.Ct.1981) (names and addresses of witnesses not work product). The condoning of a refusal to reveal the basic information concerning the existence of witnesses relegates the parties to the game of "hide and seek," so consistently condemned by our Supreme Court. Lang v. Morgan's Home Equipment Corporation, 6 N.J. 333, 338, 78 A.2d 705 (1951); Jenkins v. Rainner, 69 N.J. 50, 57, 350 A.2d 473 (1976). Of course, in very limited situations, the names and addresses of a party may implicate the lawyer-client privilege to an extent which outweighs an adverse party's need to acquire them. Fellerman v. Bradley, 99 N.J. 493, 493 A.2d 1239 (1985). Yet such an exigency -- at least in the context of a request for the names and addresses of witnesses who gave statements -- ought to occur only rarely. It is axiomatic that until a party reveals such information, there is no possible way to test an attorney's bald assertion that his client spoke the words in question or that the conversation took place in the

context of the lawyer-client relationship. Moreover, the statement itself, the real focus of a client's confidences, remains undiscoverable providing that his lawyer describes the applicability of the privilege correctly. Given a judicial policy which favors maximum discovery, this court sees no reason to leave such a decision in the hands of the party opposing disclosure. As the court said in Fellerman, the lawyer-client privilege is "to be applied in a manner that will be consistent with ...


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