On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5624-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 20, 2012 -
Before Judges Baxter and Maven.
By leave granted, plaintiff Doreen Marshall appeals from a Law Division order that required her to turn over in discovery a handwritten summary she prepared to assist her in keeping an accurate record of the hostile work environment that eventually became the subject of the present litigation alleging a violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. The three or four page summary describes in some detail the claimed offensive conduct of her supervisor, defendant Gregory Mezzacapo, and the branch manager, defendant Mohamed Fouda. The summary, which plaintiff showed to her present attorney before she retained him, was not prepared at his direction or under his supervision.
The motion judge concluded that the summary was protected by the attorney-client privilege, but the judge nonetheless ordered plaintiff to provide the summary to defendant, JPMorgan Chase Bank (Chase), because "it would be fundamentally unfair for one side to have the only relatively complete summary of what happened . . . and the other side not."
Because the summary was not prepared at the request of counsel or under his supervision, we cannot agree with the judge's conclusion that the summary was protected by the attorney-client privilege. We nonetheless affirm the order under review, although for different reasons, because ultimately the judge concluded that the summary should be turned over to defendant, a result with which we concur.
Plaintiff was hired by Chase in September 2006, as a loan officer in the Andover branch. Believing that defendant Fouda was subjecting her to unlawful sexual harassment and other negative treatment due to her gender, plaintiff filed a formal complaint with the human resources department of the bank in approximately September 2008, and also complained to defendant Mezzacapo about Fouda's behavior. According to plaintiff, she was ultimately forced to resign her position at Chase. Plaintiff prepared contemporaneous handwritten notes of her interactions with Fouda, Mezzacapo and the human resources department. She maintained the notes in a binder and kept the binder in a cardboard box in the bedroom of her home. The bedroom was in the basement.
On a date not specified by the record, plaintiff consulted with present counsel to discuss retaining him to file a LAD complaint on her behalf. She decided to bring with her to that initial meeting a consolidated summary of the information contained in her contemporaneous notes, rather than the notes themselves, because the consolidated summary was "simpler" to understand.
Plaintiff was deposed over the course of two days, December 29, 2010 and June 3, 2011. During the course of her deposition, plaintiff testified that the three or four pages of original handwritten notes became waterlogged due to flooding in the basement of her home; she eventually discarded them as they were covered in black mold and illegible. Plaintiff explained that she had never made a photocopy of the original notes.
Although plaintiff testified that she gave her attorney a copy of the consolidated summary during their initial meeting, counsel later clarified that plaintiff "kept the notes, as she . . . had not formally retained this firm at that time." After retaining present counsel, she provided him with a copy of the consolidated summary.
When Chase requested that plaintiff turn over a copy of the consolidated summary in discovery, she refused, asserting that the summary was protected by the attorney-client privilege. Chase moved to compel the production of the summary. At the conclusion of oral argument, the judge held that the summary was protected by the attorney-client privilege because plaintiff had provided the document to her attorney. Despite finding that the summary was privileged, the judge ordered plaintiff to turn the document over to defendant nonetheless for equitable reasons, stating:
[I]t strikes me that it would be fundamentally unfair for one side to have the only relatively complete summary of what happened in those conversations and the other side not. . . . I'm going to ...