The opinion of the court was delivered by: Hughes, U.S.M.J.
This matter is before the Court upon the Motion of Plaintiff Elizabeth Wong ("Plaintiff") to Compel the Turnover of a Terminated Criminal Investigation File of the Division of Criminal Justice. Defendants Regina Thomas, Micah Rasmussen, Diane Legreide, Jamie Fox, Amy Mansue, Kellie Drakeford, Michael Angulo, State of New Jersey, and New Jersey Higher Education Student Assistant Authority ("Defendants") oppose the Motion. The criminal investigation of Plaintiff conducted by the Division of Criminal Justice ("DCJ") was completed on January 28, 2005. Plaintiff now seeks discovery of the criminal investigation file in the present civil action in which she claims wrongful termination. The Court reviewed the written submissions of the parties and conducted oral argument on January 9, 2007. Although Counsel in this civil case had briefed the issue and appeared at oral argument, another Deputy Attorney General representing the DCJ also appeared, for the first time at the oral argument, and presented argument as to the turnover of the closed criminal file. For the reasons that follow, Plaintiff's Motion to Compel the Turnover of the Terminated Criminal Investigation File is granted in part and denied without prejudice in part.
I. BACKGROUND AND PROCEDURAL HISTORY
A. Criminal Investigation
In March 2002, Plaintiff, an Asian-American, was appointed as Executive Director of the Higher Education Student Assistance Authority ("HESAA") by Governor McGreevey. (Pl.'s Mem. at 3). Plaintiff alleges that during her tenure, she was pressured to favor African-Americans in the hiring process, not to hire Asian-Americans, and to make HESAA funds available only to African-American students. Id. Plaintiff also claims that she was criticized for her involvement in the Asian-American community and instructed not to socialize with Asian-Americans. Id. Plaintiff reports that she refused to comply with Defendants' allegedly unlawful demands and was forced to resign on June 30, 2004. Id. Defendants' basis for Plaintiff's forced resignation was that she had misappropriated HESAA funds. Id. Defendants claim that Plaintiff spent HESAA funds for various personal purposes and that Defendants Jamie Fox, then-Chief of Staff, and Diane LeGreide, then-Chief of Management and Operations, had particular concerns "with the increasing OPRA requests coming in from the press regarding Plaintiff's spending." (Defs.' Opp. Mem. at 5).
Defendants forwarded the allegations regarding Plaintiff's spending of HESAA funds to the State Commission of Investigation. Id. at 6. On May 6, 2004, the Commission of Investigation referred Defendants' allegations regarding Plaintiff to the New Jersey Attorney General. (Pl.'s Mem. at 3). The Division of Criminal Justice ("DCJ") then began a criminal investigation of Plaintiff and the allegations that she misappropriated HESAA funds. Id. at 4. The DCJ closed its criminal investigation of Plaintiff on January 28, 2005 after finding no evidence of wrongdoing. Id. At the close of the investigation, Deputy Attorney General Susan Kase produced a Close-Out Memorandum in which she identified the steps taken in the criminal investigation and the DCJ's conclusion regarding the allegations. (Pl.'s Ex. B). The Close-Out Memorandum concludes that "[t]he investigation did not find any evidence that Elizabeth Wong misappropriated HESAA funds." Id. Therefore, Ms. Kase recommended that the criminal case against Plaintiff be closed. Id.
On May 16, 2005, Plaintiff filed suit against Defendants alleging that she "had been wrongfully terminated by Defendants." (Pl.'s Mem. at 4). Specifically, Plaintiff alleged twenty (20) Counts against Defendants including: (1) violation of Plaintiff's Civil Rights pursuant to 42 U.S.C.A. §§ 1981, 1982, 1983, 1985, 1986, and 1988; (2) violation of Plaintiff's state and federal constitutional rights; (3) violation of the New Jersey Law Against Discrimination; (4) defamation; (5) false complaint of unprofessional conduct; (6) work environment harassment; (7) wrongful discharge in violation of public policy; and (8) bad faith. (See Pl.'s Compl. at ¶¶ 58-154).
Discovery in this matter has been ongoing for approximately a year and a half during which time Defendants have produced over 17,000 pages of documents. (Defs.' Opp. Mem. at 6). Based on Plaintiff's claims that "the false allegations concerning her misappropriation had been utilized by the Defendants as a pretext for her termination," Plaintiff sought discovery from Defendants of all documents related to any investigation of Plaintiff's alleged misappropriation. (Pl.'s Mem. at 4). On August 8, 2006, in response to Plaintiff's discovery requests, the DCJ produced a copy of the Close-Out Memorandum to counsel for Defendants via facsimile.
On August 25, 2006, Defendants produced to Plaintiff supplemental documents totaling 125 pages and a privilege log. Id. Six documents were identified as being withheld from production based on attorney client or work product privilege. (Pl.'s Mem. at 5). Attached to the privilege log were the privileged documents detailed on the log. (Defs.' Opp. Mem. at 6-7). Defendants claim that the privileged documents were attached to the privilege log as the result of a clerical error. Id. at 7. The DCJ Close-Out Memorandum was included in the supplemental production to Plaintiff and was apparently inadvertently produced. Id. The Privilege Log identified the Close-Out Memorandum as work product and described it as "Memorandum of Counsel." (Pl.'s Mem. at 5). Defendants' Counsel further produced three other documents listed on the Privilege Log. Id.
On October 5, 2006, Plaintiff took the deposition of Defendant Legreide. Id. at 6. Plaintiff learned of the Close-Out Memorandum's inclusion in Defendants' Privilege Log during the deposition when Defendants objected to any questions regarding the memorandum and instructed Ms. LeGreide not to answer questions posed by Plaintiff's counsel. Id. Immediately following the deposition, Defendants submitted letters to Plaintiff demanding the return of the privileged documents. (Defs.' Opp. Mem. at 7). When this dispute could not be resolved informally, the Court held oral argument on October 10, 2006. (Pl.'s Mem. at 6). Following oral argument, the Court permitted Plaintiff to file a formal motion for a turnover order if she wanted production of the DCJ Closed File and Close-Out Memorandum. Id. At all times, in statements to the Court and Plaintiff's Counsel, Defense Counsel in this case advised that she, and not anyone at the DCJ, should receive all requests for the investigative file.
Plaintiff filed the present motion to Compel the Turnover of the Terminated Criminal Investigation File on November 10, 2006. (See Dkt. no. 05-2588, entry no. 33). Plaintiff argues that documents prepared as part of a criminal investigation are not entitled to work product protection. (Pl.'s Mem. at 7). Plaintiff further argues that she has substantial need for the documents and is unable to obtain their substantial equivalent. Id. at 9-10. Plaintiff further argues that the Close-Out Memorandum is discoverable even if the Closed File is not. Id. at 11.
Defendants claim that they are not in possession or control of the documents sought by Plaintiff. (Defs.' Opp. Mem. at 8). Defendants further contend that Plaintiff has not given proper notice to the DCJ. Id. at 9. Defendants next argue that the Close-Out Memorandum is protected by the attorney work product privilege. Id. at 11, 15, 16. Defendants further argue that Plaintiff cannot demonstrate substantial need for the documents. Id. at 21-22.
On the day of oral argument, counsel for the DCJ appeared and argued, for the first time, that (1) the DCJ cannot turn over the criminal file without a Subpoena or Court Order and (2) certain documents in the file are privileged and not subject to turnover. Specifically, counsel for the DCJ argued that the following privileges applied: (1) attorney work product privilege; (2) deliberative ...