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Travelers of New Jersey A/S/O v. Gil & Francine Weisman

February 16, 2011


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-16977-06.

Per curiam.


Argued November 8, 2010 - Decided Before Judges Lisa, Sabatino and Alvarez.

By leave granted, appellant, Mercedes-Benz USA, LLC (MBUSA), appeals from the March 25, 2010 order requiring it to produce certain documents in discovery. MBUSA argued that the documents were protected from disclosure by the attorney-client privilege or under the attorney work product doctrine, or both. At the direction of the trial court, MBUSA prepared a privilege log and submitted it to the court together with the disputed documents. After an in camera review of the documents, the judge entered the order now before us, which required that all of the documents be turned over without redactions. The order contained stringent protective provisions designed to limit the intrusion on confidentiality.

MBUSA argues on appeal that (1) the court erred by compelling the production of the attorney-client privileged documents based on reasons unsupported by the law, (2) under the applicable legal standard, no justification exists for piercing the privilege, (3) the entry of a protective order and the trial court's reservation for a future admissibility determination, after an N.J.R.E. 104(a) hearing, do not justify the disclosure of privileged documents, and (4) alternatively, as to those documents protected by the work product doctrine, the court failed to protect against disclosure of mental impressions, conclusions and opinions.

We have not been furnished with the disputed documents. MBUSA takes the position that the judge made a finding that the documents fall within the attorney-client privilege and erred as a matter of law in ordering their disclosure for reasons that are legally untenable. Therefore, MBUSA deemed it unnecessary to furnish us with the documents. Respondents, of course, could not furnish the documents because they do not have them. However, they could have moved to require their production to us under seal as part of the appellate record. They did not do so. We could sua sponte request production of the documents from MBUSA or the trial court. However, we decline to do so because we conclude that the findings of the trial court are insufficient and a remand is necessary.

We are unable to discern, with any level of confidence, whether the court found some or all of the documents privileged, the basis upon which it ordered any privileged documents released, and whether it considered the applicability of the work product privilege and any redactions that it might require. Under these circumstances, our review of the documents and determination of the issues before us would require the exercise of original jurisdiction, see R. 2:10-5, which would be inappropriate and unwarranted. This issue should first be resolved by the trial court, with a fully developed record and sufficient factual findings and reasons for its decision. Accordingly, we vacate the March 25, 2010 order and remand for further proceedings.


The underlying litigation consists of sixteen separately filed actions which were consolidated in the trial court. The claims pertain to a fire which destroyed portions of the Crown Key Yacht Club condominium complex in Ventnor on September 16, 2005. No one was injured. The sixteen suits were brought by condominium unit owners or their insurers as subrogees for property damage. It is asserted that the fire completely destroyed one building and damaged the other building in the condominium complex, adversely affecting all forty-eight units and causing about $11.5 million in property damage.

One of the claimants' theories as to the cause and origin of the fire is that the 2003 Mercedes-Benz SL500 automobile owned by Gil and Francine Weisman ignited while parked in a carport or garage under the Weismans' unit in the condominium complex. The claimants contend that the Weismans' vehicle spontaneously ignited shortly after Mrs. Weisman parked it. It is also contended that the vehicle had front end damage, evidencing a recent accident. It is further contended (and denied by the Weismans) that smoke was seen coming from the vehicle at the time Mrs. Weisman parked it.

The unit owners or their insurers (other than the Weismans) sued various parties, including the Weismans and MBUSA. They contend the Weismans' vehicle combusted due to a defect in the vehicle or faulty repair at a Mercedes-Benz dealership. The Weismans also brought an affirmative claim against MBUSA under the same theory.*fn1

The Weismans' vehicle was substantially destroyed in the fire, making it difficult for investigators and experts to ascertain what caused the vehicle to combust. Although the fire occurred more than five years ago, and although the parties have conducted extensive investigation and discovery, no party has yet produced an expert report. Plaintiffs produced information suggesting that the Weismans' SL500 model shared a number of relevant component parts with other Mercedes-Benz models.

Plaintiffs requested an order compelling MBUSA to provide records and reports regarding fires occurring in all such models to assist their proposed experts in analyzing the cause of this fire. Because of the severe damage to the Weismans' vehicle and the resulting difficulty in developing direct evidence, plaintiffs are attempting to develop a circumstantial case against MBUSA.

On August 28, 2009, the trial court entered an order compelling MBUSA to respond to certain discovery, including the production of "all internal fire investigation files" for the years 2001 through 2006 for all SL500 models as well as six other specified models in the "500" series. The order provided that counsel for MBUSA could remove any privileged documents from the files and prepare a privilege log to be submitted to the court for in camera review of redacted or removed items at the request of counsel for plaintiffs.

It appears that MBUSA identified about 100 car fires occurring in the designated models over the six-year period covered by the August 28, 2009 order.*fn2 MBUSA furnished plaintiffs with nearly 4000 pages of documents from its internal files pertaining to those car fires. It withheld or redacted fewer than 700 pages, which it claimed were ...

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