On appeal from the Superior Court of New Jersey, Law Division, Mercer County, MER-L-582-02, MER-L-1976-03, MER-L-2246-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Winkelstein and Fuentes.
Plaintiffs, officers of the New Jersey State Police, claim that defendants, the State of New Jersey and various state employees and agencies, retaliated against them for various reasons, including their involvement in the background check of Joseph Santiago conducted pursuant to his gubernatorial nomination for Superintendent of the New Jersey State Police. On leave granted, defendants appeal from the portion of the trial court's June 27, 2006 order that directed them, subject to a number of restrictions, to "produce the four-way investigation*fn1 (not including the underlying reports) of Joseph Santiago to all counsel for use in depositions." The trial court stayed that portion of its order pending the outcome of this appeal. We remand for further proceedings.
In the lawsuit, three separate sets of plaintiffs raise various constitutional, statutory and common law claims. Plaintiffs Fernando Piniero, Paul Dehope, Joseph Soulias, and Oswald Morales (the Piniero plaintiffs) did not participate in the Santiago investigation. They contend that they were discriminated against in their employment on the basis of race because they refused to engage in racial profiling at the direction of their supervisors, and that they were retaliated against because of their refusal to do so and because of their complaints regarding the operations of the State Police. Their claims, which are substantively different from the claims of the other plaintiffs, are based on allegations of a continuing course of conduct that began prior to the investigation related to Santiago's appointment.
Plaintiffs David Kushnir, Thomas Primo, and Dennis Vecchiarelli (the Kushnir plaintiffs) had, while Santiago's appointment to the Superintendent position was still pending, received reports that he had ties to organized crime. They claim that after they memorialized this information and submitted the reports up the chain of command, they were retaliated against on the basis of these reports.
The final group of plaintiffs, Martin Temple, Marco Peralta, and Thomas Suscewicz (the Temple plaintiffs), were members of the State Police's Special Investigations Unit (SIU), which is charged with conducting background checks into gubernatorial appointees. In January 2002, they performed the "four-way" investigation into Santiago's background, conducting interviews and gathering information. Though they were concerned about a potential conflict of investigating their potential superintendent, the State Attorney General's Office, through plaintiffs' superior officers, advised them to continue the investigation. They allege that they were retaliated against for their role in the Santiago investigation.
During the course of discovery, plaintiffs sought to depose Santiago and former Attorney General Peter Harvey. They requested the report produced as a result of the four-way investigation for use during the depositions. The court ordered defendants to produce the four-way investigation for in camera inspection and directed plaintiffs to proceed with the depositions without the requested discovery materials.
On June 26, 2006, the parties appeared before the trial court to resolve the discovery issue. On that date, the judge, who had had an opportunity to review the approximately 3500 pages of documents the State had submitted for in camera review, provided an oral decision from the bench, requiring defendants, subject to certain conditions, to produce the "four-way investigation." The following day, the judge entered a written order memorializing his prior oral decision. He directed defendants to "produce the four-way investigation" for use in depositions, subject to the following restrictions: only counsel who submitted a certificate of confidentiality could be present during depositions when the four-way was used, and plaintiffs themselves could not attend the depositions. On July 28, 2006, the court filed a "consent protective order" that it had prepared, setting terms for the use and disclosure of the documents; counsel for all the parties had signed the document, signifying agreement with its terms.
In arriving at his decision to direct the State to produce the four-way investigation, the trial judge made the following observations and findings:
I went through the documents and a host of reports and interviews . . . all of which are tangentially related to the claims made by the plaintiffs. Much of which is largely irrelevant, but which could under our . . . civil discovery lead to relevant information or create some sort of inferences that could be useable in a discovery situation.
. . . [F]rom the 3500 documents that I've looked at there isn't a . . . lot in there that demonstrates beyond that which is already public ...