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Drinker Biddle & Reath Llp v. New Jersey Department of Law and Public Safety

August 18, 2011

DRINKER BIDDLE & REATH LLP, PLAINTIFF-APPELLANT,
v.
NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF LAW, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-63-09.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued February 3, 2011 Before Judges Cuff, Simonelli and Fasciale.

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

In this appeal we consider whether unfiled discovery in an environmental lawsuit brought by the New Jersey Department of Environmental Protection (NJDEP) against ExxonMobil Corp. (the Exxon litigation) is subject to access pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, or the common-law right of access. We hold that N.J.S.A. 47:1A-9b exempts unfiled discovery from disclosure; however, we reverse the dismissal of plaintiff Drinker, Biddle & Reath LLP's (Drinker) common-law right of access claim, and remand for the court to conduct the appropriate common-law balancing test.

The facts are undisputed. On November 5, 2008, Drinker submitted an OPRA request for copies of the transcripts from the depositions of three of Exxon's experts, which private counsel representing the NJDEP took during the Exxon litigation.*fn1 The transcripts in their entirety have not been filed with the court.*fn2 Defendant New Jersey Department of Law and Public Safety, Division of Law (the Division) denied Drinker's OPRA request, stating,

We have carefully considered your request. You are seeking access to unfiled discovery material. These records are exempt from public disclosure pursuant to [N.J.S.A.] 47:1A-9[b]. Judicial case law recognizes that unfiled discovery is not subject to public access. [See, e.g., Estate of Frankl v. Goodyear Tire & Rubber Co., 181 N.J. 1 (2004)]. The Division of Law has determined not to waive its privilege to maintain the confidentiality of the unfiled discovery in question here.

Drinker filed an order to show cause and verified complaint in lieu of prerogative writs alleging a violation of OPRA, the common-law right of access, and the federal and State constitutions. At oral argument on the order to show cause, Drinker argued that the transcripts are government records subject to access under OPRA in the absence of a confidentiality order, and OPRA does not exclude unfiled discovery documents from access. Drinker also argued that Frankl, supra, 181 N.J. 1, only establishes an exception for court records, Gannett New Jersey Partners v. County of Middlesex, 379 N.J. Super. 205 (App. Div. 2005), supports access, and the State failed to demonstrate that the Legislature intended to exclude unfiled discovery documents from the ambit of OPRA.

The trial judge dismissed Drinker's OPRA claim, concluding, in part, that the transcripts were not subject to access pursuant to N.J.S.A. 47:1A-9b. The statute incorporates the grant of confidentiality to unfiled discovery documents established or recognized by pre-OPRA case law, such as, In re Alexander Grant & Co. Litigation, 820 F.2d 352, 355 (11th Cir. 1987), and Hammock v. Hoffmann-LaRoche, Inc., 142 N.J. 356 (1995), which the judge referenced in his reasoning.*fn3 The judge also concluded that post-OPRA case law, such as, Frankl, supra, and Spinks v. Township of Clinton, 402 N.J. Super. 454 (App. Div. 2008), maintained "a historically and nationally recognized distinction between filed and unfiled discovery."*fn4

The judge also dismissed Drinker's common-law right-of-access claim. The judge questioned whether the transcripts fell under the common-law definition of "public records." Nevertheless, he concluded that Drinker failed to state a personal interest in obtaining the transcripts, and its asserted general public interest in the Exxon litigation "does not provide adequate basis for this [c]court to direct a ruling in favor of [Drinker] in light of the abundance of authority protecting unfiled discovery information."*fn5 This appeal followed.

On appeal, Drinker contends, and the State does not dispute, that the transcripts are government records under both OPRA and the common law. Drinker also contends there is no OPRA exemption for unfiled discovery documents, no case law has established that OPRA exempts unfiled discovery in a public agency's possession, and the Division could have, but did not, seek a confidentiality order in the Exxon litigation for the unfiled deposition transcripts. Drinker further contends it has a common-law right of access based on the public's interest in the State's use of resources in pursuing the Exxon litigation, and the State has no legitimate interest in maintaining the transcripts' confidentiality.

"We review de novo the issue of whether access to public records under OPRA and the manner of its effectuation are warranted." MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 543 (App. Div. 2005). We apply the same standard of review to the court's legal conclusions with respect to whether access to public records is appropriate under the common-law right of access. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The Legislature enacted OPRA with the purpose of "'maximiz[ing] public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.'" Mason v. City of Hoboken, 196 N.J. 51, 64 (2008) (citation omitted). "OPRA is designed to advance this policy by broadly defining 'government records,' N.J.S.A. 47:1A-1.1, and by publicly declaring that they shall be accessible, N.J.S.A. 47:1A-1." Kovalcik v. Somerset Cnty. Prosecutor's Office, ___ N.J. ___, ___ (2011) (slip op. at 9). However, "the right to disclosure is not unlimited, because . . . OPRA itself makes plain that 'the public's right of access [is] not absolute.' That conclusion rests on the fact that OPRA exempts numerous categories of documents and information from ...


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