On appeal from the Superior Court, Appellate Division, whose opinion is reported at 292 N.J. Super. 36 (1996).
The opinion of the Court was delivered by Handler, J. Justices O'hern, Garibaldi, Stein and Coleman join in Justice Handler's opinion. Chief Justice Poritz and Justice Pollock did not participate.
The opinion of the court was delivered by: Handler
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Joanne Payton v. New Jersey Turnpike Authority (A-91-96)
Argued January 7, 1997 -- Decided March 26, 1997
HANDLER, J., writing for a unanimous Court.
In this case, an employee is suing her employer and two of her supervisors for sexual harassment under the Law Against Discrimination (LAD). The general question addressed by the Court is the nature and extent of the pretrial discovery that an employee claiming to have been sexually harassed is entitled to obtain for the purpose of establishing the employer's liability based on its alleged failure to respond to her complaints of sexual harassment.
Joanne Payton began working as a maintenance records clerk for the New Jersey Turnpike Authority (the Authority) in 1990. She alleged that, shortly after she started, two of her supervisors began to sexually harass her in various ways. Although Payton tolerated the harassment for several years, she finally filed an internal complaint with the Authority in September 1994. During the following seven months, the alleged harassment continued, with the Authority taking no remedial action against the supervisors. Finally, on March 10, 1995, Payton filed suit in the Superior Court, Law Division against the supervisors and the Authority, alleging that the Authority was vicariously liable for the acts of the supervisors under the LAD.
On April 26, 1995, the Authority announced that it had disciplined the two supervisors by suspending them without pay, by demoting them, and by reducing their salaries. The Authority raised these actions as an affirmative defense to Payton's complaint, claiming that, by its response to her complaint of sexual harassment, it had neither participated in nor acquiesced in the harassment. The Authority later represented that its Equal Employment Opportunity Officer (EEO Officer) had made initial findings about the complaint several months before Payton filed her internal complaint and, further, that it had issued a final investigative report only four days after she filed suit. Finally, the Authority asserted that, approximately one month after Payton filed suit, its Sexual Harassment Advisory Committee had completed a confidential review of the EEO Officer's report and that, on April 25, 1995, its commissioners had convened an executive session regarding the matter, during which they presumably discussed the report and determined the appropriate sanctions.
In order to gauge the validity of the Authority's affirmative defense that it had effectively remedied the harassment, Payton sought discovery of materials relating to the investigation and executive session, including transcripts, minutes, agendas, and other supporting documents. The Authority moved for a protective order exempting all of the requested documents from discovery and asking the court to seal the record. The Law Division granted the protective order in its entirety, without examining any of the documents in camera. In support of its broad order, the court cited the public policy of confidentiality embodied in the LAD and relied, to a lesser degree, on the attorney-client privilege and the privilege of self-critical analysis.
The Appellate Division granted Payton's motion for leave to appeal and vacated the protective order. The Appellate Division concluded that Payton was at least entitled to discover information relating to the extent and timing of the Authority's investigation, the information gleaned from that investigation, the Authority's evaluation of the information, and the action taken by the Authority. The Appellate Division instructed the trial court to inspect the documents at issue in camera and to make appropriate redactions in order to accommodate concerns about confidentiality and privilege.
The Supreme Court granted the Authority's motion for leave to appeal.
HELD: Materials relating to an employer's internal investigation of alleged sexual harassment are relevant to a claim under the LAD and hence generally discoverable.
1. New Jersey's discovery rules are to be construed liberally in favor of broad pretrial discovery and parties may obtain discovery regarding any matter, not privileged, that is relevant to the pending subject matter. (pp. 6-7)
2. Under the LAD, employers that are negligent in failing to take effective steps to end sexual harassment can be liable for compensatory damages, while those that actually participate in or are wilfully indifferent to the wrongful conduct can be liable for punitive damages. (pp. 7-9)
3. The efficacy of an employer's remedial program is highly relevant to both an employee's claim against the employer and the employer's defense to liability. (pp. 9-11)
4. A remedial scheme that reaches the correct result through a process that is unduly prolonged or that unnecessarily and unreasonably leaves the employee exposed to continued hostility in the workplace is an ineffective remedial scheme. (pp. 11-12)
5. Although relevance creates a presumption of discoverability, that presumption can be overcome by demonstrating the applicability of an evidentiary privilege, such as that the need for confidentiality outweighs the need for disclosure. That notwithstanding, such a categorical approach to concerns about confidentiality is disfavored, in favor of a case-by-case balancing. (pp. 12-15)
6. The appropriate balance is to recognize a conditional privilege of confidentiality that applies selectively depending on the nature of the material involved. In its application, a trial court may require procedures that protect the confidentiality of those involved in the investigation if a loss of confidentiality would otherwise undermine the efficacy of investigations. Only in truly extreme cases should the need for confidentiality require suppression of specific documents. (pp. 15-18)
7. Self-critical analysis is not qualitatively different from other confidential information and thus does not require the protection of a broad privilege, as opposed to a balancing of interests. (pp. 19-22)
8. Confidentiality is not always essential to encourage frank, productive self-evaluation. If a trial court determines that disclosure is warranted, which will normally be the case in discrimination lawsuits, it should take adequate protective measures to ensure maximal confidentiality given the necessity of disclosure. (pp. 22-27)
9. The application of the attorney-client privilege must be determined on a case-by-case basis and depends on the role an attorney may have had in the creation of the particular documents. (pp. 27-31)
10. A party may not abuse a privilege by asserting a claim or defense and then refusing to provide the information underlying that claim or defense based on the privilege. (pp. 31-33)
11. In order for the work-product doctrine to apply, the trial court should make an in camera inspection of the documents to determine that the materials have been prepared in anticipation of litigation, and not in the ordinary course of business. (pp. 33-35)
12. If a public body legitimately conducts a meeting in closed session, it nevertheless must make the minutes of that meeting promptly available to the public unless full disclosure would subvert the purpose of a particular exception to the Open Public Meetings Act. However, given the Legislature's strongly stated intent to effectuate broad public participation in the affairs of governmental bodies, few cases will require even partial nondisclosure. The Open Public Meeting Act provides no greater protection than the attorney-client privilege and the work-product doctrine in general. (pp. 35-40)
13. Although deference is normally given to a trial court's Disposition of discovery matters, deference is inappropriate if the court's determination in drafting its order is based on a mistaken understanding of the applicable law. (p. 40)
Judgment of the Appellate Division is AFFIRMED and the matter is REMANDED to the Law Division for proceedings not inconsistent with this opinion.
JUSTICES O'HERN, GARIBALDI, STEIN and COLEMAN join in JUSTICE HANDLER'S opinion. CHIEF JUSTICE PORITZ and JUSTICE POLLOCK did not participate.
The opinion of the Court was delivered by
In this case, an employee is suing her employer and two of her supervisors for sexual harassment under the Law Against Discrimination. She contends that her supervisors harassed her and that her employer failed to respond adequately to her complaints. Although the employer subsequently disciplined the supervisors after determining that the employee's claims were meritorious, the employee asserts that the employer's allegedly inadequate response to her complaints contributed to the harm that she suffered and consequently entitles her to damages.
The general question that we must consider is the nature and extent of the pretrial discovery that an employee claiming to have been sexually harassed is entitled to obtain for the purpose of establishing the employer's liability based on its alleged failure to respond to her complaints of sexual harassment. The more specific issues that must be addressed in this case relate to whether various documents and records pertaining to the employer's handling and Disposition of the employee's complaints of sexual harassment, including its internal investigation, may be made available through discovery and the extent to which concerns based on confidentiality and privilege may preclude or limit the discovery of such materials.
Plaintiff Joanne Payton began working as a maintenance records clerk for defendant New Jersey Turnpike Authority in November 1990. Shortly after she started, two of her supervisors, Robert Geberth and Michael Stankowitz (the two highest ranking administrators in her unit), allegedly began to sexually harass her. According to plaintiff's complaint, they harassed her in the following manners:
(a) Defendant Geberth commented about Plaintiff's clothing[,] grabbing the bottom of her skirt and pulling it down, stated her clothes look like she is "wearing pajamas," put his hand around the Plaintiff, on her shoulder or on her knee and called Plaintiff into his office directing that she turn around so that he could look at her;
(b) Defendant Stankowitz told Plaintiff on several occasions that he was "horny" and wanted "to get laid," referred to Plaintiff's breasts and said to her "just one time," tried to look down Plaintiff's blouse and, during lunch at a restaurant, took the Plaintiff's hand and put it between his legs;
(c) During the office holiday luncheon on or about December 1993, Defendants Geberth and Stankowitz gave Plaintiff a "baby doll" nightgown. Defendant Geberth insisted that she open the gift in front of her office coworkers who were attending the luncheon; and
(d) On or about July, 1993, Defendant Geberth slapped a female co-worker on the buttocks in the presence of several co-workers, including the Plaintiff.
For several years, plaintiff tolerated the harassment, but in September 1994, she filed an internal complaint with defendant.
During the approximately seven months following plaintiff's complaint, the alleged harassment continued, and defendant took no remedial action against the supervisors. On March 10, 1995, believing that defendant would not resolve the situation, plaintiff brought suit in the Superior Court, Law Division against defendant and the supervisors, alleging with regard to defendant that it was vicariously liable under the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -42, for the supervisors' conduct.
On April 26, 1995, defendant announced that it had disciplined the two supervisors, having suspended them without pay, demoted them, and reduced their salaries. Five days later, in answer to plaintiff's complaint, defendant raised these actions as an affirmative defense to vicarious liability, claiming that, by its response to her complaint of sexual harassment, it had neither participated in nor acquiesced in the harassment. Defendant later represented, through a privileged document log, that its Equal Employment Opportunity Officer ("EEO Officer") had made initial findings about the complaint on December 8, 1994 and (together with in-house counsel) had issued a final investigative report on March 14, 1995, four days after plaintiff had filed suit. It also asserted that, on April 13, 1995, its Sexual Harassment Advisory Committee had completed a confidential review of the EEO Officer's report, including remedial recommendations, and that, on April 25, 1995, defendant's commissioners had convened an executive session regarding the matter, during which they presumably had discussed the report and determined the appropriate sanctions.
In order to gauge the timeliness and thoroughness of defendant's actions (and hence the validity of defendant's affirmative defense that it had effectively remedied the harassment), plaintiff sought discovery of materials relating to the investigation and executive session. Specifically, she demanded "all documents relating to any investigation that was conducted by or for the defendant having to do with the plaintiff and her employment with the defendant[,] . . . all documents relating to any investigation that was conducted by or for the defendant having to do with the plaintiff and her administrative complaint alleging sexual harassment[, and] . . . any minutes, transcriptions, reports, supporting documents, agendas, [and] recordings related to [the Commissioners' April 25, 1995] meeting."
Defendant moved for a protective order exempting all of the requested documents from discovery. It also asked the court to seal the record. Plaintiff opposed the motion and, in the alternative, moved to strike the affirmative defense if defendant were not required to produce the documents.
The Law Division, without examining any of the documents in camera, granted the protective order in its entirety, thus removing from the discovery process all documents relating to the investigation. In support of its broad order, the court cited the public policy of confidentiality embodied in the LAD. It also relied, to a lesser degree, ...