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Bayliss v. New Jersey State Police

United States District Court, Third Circuit

September 20, 2013

NEW JERSEY STATE POLICE, et al., Defendants.


LOIS H. GOODMAN, Magistrate Judge.

THIS MATTER comes before the Court by motion filed by the New Jersey State Police (the "State" or the "NJSP") on March 8, 2013 [Docket Entry No. 75], seeking an Order compelling the return of documents inadvertently produced, and an identification of all those to whom the documents at issue were disseminated (the "Clawback Motion"). The Clawback Motion is opposed by Defendant Trooper R. Wambold ("Wambold"). [Docket Entry No. 83] (the "Wambold Brief"). The Court has considered the motion on the submissions without oral argument, pursuant to Fed.R.Civ.P. 78. For the following reasons, the motion is GRANTED.


This case has a somewhat tortured procedural history. For purposes of this Order, the Court presumes familiarity with the background and therefore limits the discussion to that necessary for an understanding of the issues.

Plaintiff James Bayliss ("Bayliss" or "Plaintiff") filed suit in the Superior Court of New Jersey on or about January 14, 2011, naming as defendants the NJSP, Wambold and Trooper Juckett ("Juckett"). Defendants removed the case to Federal Court on February 17, 2011. [Docket Entry No. 1]. After a period in which Plaintiff amended the complaint twice and the case was stayed for several months in light of then-ongoing criminal proceedings, an initial scheduling conference was conducted on March 29, 2012. The parties then commenced discovery.

At a status conference conducted on October 24, 2012, the issue currently before the Court was first raised. Specifically, the parties addressed a proposed amended pleading that counsel for Wambold had circulated at the Court's instruction, to determine whether there was consent for the amendment. During the call, the NJSP raised the fact that the proposed amended pleading contained references and quotes from confidential documents that it had not produced, referred to as the State Police Review Sheets (the "Review Sheets"). There was discussion as to how the documents had come into the possession of Wambold's counsel. The undersigned instructed counsel to have further discussion on the issue in an effort to reach a resolution with regard to the use or return of those documents. In the interim, the parties were instructed not to further disseminate the documents at issue.

On November 7, 2012, Bayliss filed the Third Amended Complaint. [Docket Entry No. 48]. Shortly thereafter, the Court conducted a status conference on November 19, 2012. Because the Third Amended Complaint appeared to contain information from the Review Sheets, as quoted in the proposed amendment Wambold's counsel had circulated earlier, the Third Amended Complaint was placed under temporary seal. [Docket Entry No. 54]. In the Order dated November 27, 2012, counsel were instructed to "meet and confer regarding the confidentiality issues arising from the amended answer and determine how to address these issues prior to the amended answer being electronically filed." Id.

On December 5, 2012, Wambold filed a Motion for Leave to File a Third Amended Answer, Counter-Claims, Cross-Claims & Third Party Complaint (the "Motion to Amend"). [Docket Entry No. 59]. The other Defendants have opposed the motion to amend, on various grounds, including that the amendment should not be allowed under the Younger abstention doctrine, given that the claims sought to be added are the subject of pending state proceedings. [Docket Entry No. 82].

After the Motion to Amend had been filed, the parties notified the Court that they had agreed to mediation with retired Superior Court Judge John E. Keefe in an effort to resolve the many outstanding issues in the case. They requested that the status quo be maintained while they explored settlement. [Docket Entry No. 62]. When mediation proved unsuccessful, the Court conducted an in-person status conference on February 13, 2013, at which time the Court set a schedule for the filing of the present motion for the return of documents by no later than March 8, 2013.

The Clawback Motion was then timely filed on March 8, 2013. [Docket Entry No. 75]. Wambold filed opposition on April 1, 2013. [Docket Entry Nos. 83, 84, 85]. Soon thereafter, the parties advised the undersigned that they were again engaging in the mediation process, and the Clawback Motion, along with Wambold's Motion to Amend, were put on hold.

On August 22, 2013, the Court conducted another status conference, during which counsel advised that Bayliss had reached a settlement with all Defendants. Wambold had not, however, settled the claims he had raised against the State. The parties discussed the impact of the settlement on the issues pending in this matter, including whether this Court has jurisdiction over any remaining issues, particularly those raised in the Motion to Amend. The Motion to Amend was terminated and is to be the subject of further briefing if Wambold intends to pursue that motion; otherwise those claims will proceed in state court, where separate actions in which the same claims have been asserted are already pending. In the interim, the State has indicated that it still seeks to have a decision from this Court on the Clawback Motion.


The issue before the Court is whether the Review Sheets must be returned to the State based upon an inadvertent production of documents protected by the deliberative process privilege. Fed.R.Civ.P. 26(b)(5)(B) provides in relevant part:

Information Produced. If information produced in discovery is subject to a claim of privilege... the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

In determining whether documents that have been inadvertently produced must be returned, courts utilize a two-step process: first, the court must determine whether the documents at issue are in fact privileged. See Peterson v. Bernardi, 262 F.R.D. 424, 427 (D.N.J. 2009). If the documents are found to be privileged, ...

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