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Terrell v. Schweitzer-Mauduit International

June 17, 2002

JOHN TERRELL, GENE KEY, AND MYRON MCPHERSON, PLAINTIFFS-RESPONDENTS,
v.
SCHWEITZER-MAUDUIT INTERNATIONAL, INC., KIMBERLY CLARK CORPORATION AND JOHN DOES 1 THROUGH 50, JOINTLY, SEVERALLY AND INDIVIDUALLY, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Civil Part, Mercer County, MER-L-1227-97.

Before Judges Petrella, Kestin and Alley.

The opinion of the court was delivered by: Alley, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 20, 2002

In this appeal involving a discovery dispute, we are called upon, among other things, to attempt to resolve difficulties arising from the action of a Law Division judge in conducting an in camera review of defendants' privileged documents and then sua sponte releasing some of those documents, in redacted form, to opposing counsel without affording defendants the opportunity to seek review of the court's decision to release the privileged material. We reverse and remand with instructions.

Plaintiffs, John Terrell, Myron McPherson, and Gene Key are all present or former employees of defendants Schweitzer-Mauduit International, Inc. and Kimberly Clark Corporation. On April 2, 1997, plaintiffs filed a complaint alleging that during their employment with defendants, they were subjected to adverse employment actions and a hostile work environment on the basis of their race in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to 10:5-49 ("LAD"). Defendants filed their answer and affirmative defenses to that complaint on June 2, 1997.

Before the complaint was filed plaintiffs sent defendants a demand letter on October 15, 1996, together with a draft of the complaint they planned to file claiming that defendants were in violation of the LAD. After receiving this demand letter, defendants enlisted the services of Barbara Zausner Tener, an independent investigator, to examine plaintiffs' claims that a racially hostile work environment existed at defendants' facility in Spotswood, New Jersey, where plaintiffs worked, and to determine whether remedial action needed to be taken.

During late October and early November 1996, Ms. Tener conducted her investigation. Defendants contend that all the documents relating to her investigation were delivered to the plaintiffs in response to a subpoena that was served upon Ms. Tener.

Also before the complaint was filed, on November 25 and December 4, 1996, defendants' attorneys, Suzanne M. Cerra and Patrick M. Stanton, from the law firm of Stanton, Hughes, Diana, Salsberg, Cerra and Mariani, P.C. (Stanton Hughes) met with and interviewed certain employees from defendants' Spotswood facility. Specifically, one or both of them interviewed Greg Benedict, Ted Moskal, Ed Lunski, Paul Vander Heyden, Brad Byers, Dave Connover, Clyde Funt, Ed Pinella, and Roger Kadash, for the purpose of gathering factual information as a basis for providing legal advice to defendants with respect to the merits of plaintiffs' claims and assisting in preparation for any potential litigation.

Defendants maintain that they did not in any way supervise or direct the Stanton Hughes interviews of defendants' employees. In their meetings with the employees, Stanton and Cerra took notes on the substance of their discussions. Cerra prepared nine sets of handwritten notes from the meetings with each of the above-mentioned employees. Stanton compiled only seven sets of notes reflecting the contents of the interviews he had with defendants' employees. Stanton did not meet with Benedict and did not prepare any notes from the interview with Moskal. Cerra also prepared typed memoranda for five of the employee interviews, summarizing her handwritten notes from those interviews. According to defendants, all the interview notes and memoranda relating to the interviews of defendants' employees were retained by Stanton Hughes in its litigation files.

Plaintiffs filed their complaint against defendants in April 1997, and defendants answered the complaint on June 2, 1997. Plaintiffs then served requests upon defendants for the production of documents on June 30, 1997, August 20, 1997, March 12, 1998, and June 22, 1998. Defendants interposed certain objections to these document production requests, and consistent with their objections did not furnish all the documents demanded by plaintiffs. To elaborate, plaintiffs served an initial Request for Production of Documents upon defendants on June 30, 1997. On September 9, 1997, defendants provided documents in response to fourteen of those requests. Defendants set forth a number of objections to plaintiffs' document requests, however, claiming that they were too broad, the information sought was privileged or "otherwise immune from discovery," and the requests called for confidential or proprietary information.

On August 20, 1997, plaintiffs served upon defendants a Second Request for Production of Documents, in which plaintiffs sought the names, addresses, telephone numbers, and dates of employment for employees at a specified facility of defendants. When defendants responded to this document request on September 9, 1997, they raised objections similar to those they had asserted with respect to plaintiffs' initial document request, claiming that the request was overly broad, that the information sought was privileged or "otherwise immune from discovery," and that requests called for confidential or proprietary information.

On March 12, 1998, plaintiffs sent their Third Request for Production of Documents, seeking:

All documents, notes and/or memos which reflect and/or refer to any communications with Defendants' employees or former employees in connection with this case, by Defendants, Defendants' agents, and/or Counsel for Defendants in preparation for trial, with all mental impressions ...


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